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Court of Criminal Appeal 13 April 2006

R v DOYLE

[2006] NSWCCA 118

Assault & violenceTraffic & driving
CRIMINAL LAW SENTENCE CROWN APPEAL AGGRAVATION HIGH RANGE PCA CUSTODIAL SENTENCE REQUIRED

Citation: R v Doyle [2006] NSWCCA 118
Court: NSW Court of Criminal Appeal
Date: 13 April 2006
Judge(s): McClellan CJ at CL; Rothman J; Smart AJ

Background

The respondent pleaded guilty in the District Court to aggravated dangerous driving occasioning grievous bodily harm, contrary to s 52A(4) of the Crimes Act 1900. The aggravating feature was that his blood alcohol concentration (BAC) at the time he was charged was 0.205 grams per 100 millilitres of blood, with the sentencing judge finding his BAC at the time of the accident was likely between 0.224 and 0.253. He had consumed approximately half a 700ml bottle of vodka shortly before driving.

On 2 July 2004, the respondent drove his vehicle onto the wrong side of the road and collided with another car carrying a father and his three adult children. All but one occupant of the other vehicle sustained injuries. The most seriously injured victim suffered a ruptured spleen requiring 12 days of hospitalisation. The injury was potentially life-threatening, though surgery ultimately proved unnecessary.

At first instance, Phegan DCJ sentenced the respondent to a fixed term of two years' imprisonment, suspended for two years upon the respondent entering a bond, and imposed a two-year driving disqualification. The Crown appealed on the basis that the sentence was manifestly inadequate and that a full-time custodial sentence was required.

  • Whether a suspended sentence was a sufficient response to an offence of aggravated dangerous driving occasioning grievous bodily harm with a very high BAC reading.
  • Whether the respondent's history of depression and the underlying reasons for his alcohol consumption were relevant factors capable of mitigating the need for a custodial sentence.
  • The appropriate weight to be given to double jeopardy (the additional hardship a respondent faces when resentenced following a successful Crown appeal), the respondent's compliance with the bond conditions, and the lapse of time since sentencing.
  • Whether the two-year driving disqualification imposed at first instance was adequate.

Decision

The Court of Criminal Appeal held that the original sentence was infected by error and was manifestly inadequate. The sentencing judge had placed excessive weight on the respondent's psychiatric difficulties and personal circumstances, treating them as a basis for avoiding full-time custody. The Court found that a custodial sentence was plainly required given the gravity of the offence.

The Court addressed the relevance of the respondent's depression and the reasons underlying his alcohol consumption. While acknowledging that his psychiatric history was not irrelevant to sentencing generally, the Court concluded it provided no excuse for driving in a state of extreme intoxication. The respondent must have known, before he began driving, that he was heavily affected by alcohol. His level of moral culpability was high.

On the question of double jeopardy, the Court recognised the additional burden placed on a respondent who faces resentencing after complying with the conditions of a suspended sentence. The Court took this into account, along with the lapse of time and the respondent's rehabilitation efforts, when determining the length and structure of the new sentence. Special circumstances were found to exist, justifying a longer-than-usual parole period, given the respondent's need for ongoing rehabilitation and the fact that this would be his first custodial sentence.

Regarding the driving disqualification, the Court held that the original two-year period was insufficient. The sentencing judge had reduced the disqualification to account for the practical hardship caused to the respondent in travelling to work, but the Court of Criminal Appeal found the gravity of the offence outweighed that consideration. A three-year disqualification, backdated to when police had originally suspended his licence, was imposed.

Orders Made

  • The Crown appeal was allowed.
  • The sentence imposed by Phegan DCJ on 14 September 2005 was quashed.
  • In substitution, the respondent was sentenced to imprisonment with a non-parole period of 18 months commencing 14 September 2005 and expiring 13 March 2007, with a balance of term of a further 18 months expiring 13 September 2008.
  • The respondent was to be released to parole on 13 March 2007 on the usual conditions.
  • The respondent was disqualified from driving for three years commencing 18 September 2004 and expiring 17 September 2007.

Key Takeaways

  • A suspended sentence was held to be manifestly inadequate for an offence of aggravated dangerous driving occasioning grievous bodily harm where the offender's BAC was extremely high and the driving caused serious injury to multiple people.
  • Depression and the reasons underlying an offender's alcohol consumption do not, of themselves, reduce the need for a custodial sentence where the offender drove in a state of obvious and extreme intoxication with a high degree of moral culpability.
  • The Court of Criminal Appeal confirmed that, as a general principle, custodial sentences will normally be imposed where driving under the influence of alcohol or drugs causes grievous harm to others.
  • Double jeopardy, lapse of time, and compliance with bond conditions are legitimate mitigating factors in Crown appeals, but they did not displace the need for full-time custody in circumstances of this seriousness.
  • Practical hardship to the offender arising from a driving disqualification, such as difficulty travelling to work, may be a relevant sentencing consideration, but it will not necessarily justify reducing a disqualification period where the underlying offence is sufficiently grave.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), s 52A(4)

Cases:
- R v Way (2004) 60 NSWLR 168
- R v Pitt [2005] NSWCCA 304
- R v Engert (1995) 84 A Crim R 67
- R v AN [2005] NSWCCA 239
- R v Letteri, NSWCCA, unreported, 18 March 1992
- R v Wall [2002] NSWCCA 42
- R v Prasad (2004) 147 A Crim R 385
- R v Abboud [2005] NSWCCA 251
- R v AA [2006] NSWCCA 55
- R v Whyte (2002) 55 NSWLR 252
- Application by Attorney General re High Range PCA (2004) 61 NSWLR 305
- Douglass v R [2001] NSWCCA 250