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12
Court of Criminal Appeal 19 January 2006

Gonzalez v R

[2006] NSWCCA 4

Assault & violenceTraffic & driving
CRIMINAL LAW AGGRAVATED DRIVING CAUSING GBH CONCURRENT SENTENCES ERRONEOUS SENTENCE NOT MANIFESTLY EXCESSIVE APPEAL FRESH MATERIAL

Citation: Gonzalez v R [2006] NSWCCA 4
Court: New South Wales Court of Criminal Appeal
Date: 19 January 2006
Judge(s): Howie J, Basten JA, Hall J

Background

The applicant was a 22-year-old man who, in the early hours of 15 January 2004, drove a vehicle with a blood alcohol reading of 0.173 (well above the 0.15 threshold for aggravated offences) before losing control on a bend in Beverly Hills. The vehicle struck a telegraph pole, snapping it at the base, and rolled onto its roof. Two passengers suffered serious injuries: one required extensive surgery including facial reconstruction, lung repair, and treatment for four broken vertebrae; the other sustained fractured ribs, a punctured lung, and significant lacerations.

The applicant had insisted on driving after the vehicle's owner had asked for the keys. He had no prior criminal record but carried a troubling traffic history, including seven speeding offences within a few months in 2002, and was subject to a good behaviour condition on his licence at the time of the crash. He pleaded guilty to two charges of aggravated dangerous driving causing grievous bodily harm under s 52A(4) of the Crimes Act 1900, which carries a maximum penalty of 11 years imprisonment.

In the District Court, Andrews ADCJ sentenced the applicant on each charge to 2 years and 6 months imprisonment with a non-parole period of 1 year and 3 months, with both sentences running concurrently from 14 February 2005. The applicant sought leave to appeal, arguing the moral culpability finding was excessive and the overall sentence manifestly so.

  • Whether the sentencing judge erred in assessing the applicant's moral culpability as "high" under the framework established in R v Whyte
  • Whether the overall sentence was manifestly excessive
  • Whether fresh material (evidence of one victim's recovery and return to work) was admissible on the appeal
  • Whether the concurrent sentencing structure complied with s 44 of the Crimes (Sentencing Procedure) Act 1999, which requires the court to fix a non-parole period and then set a separate balance of term

Decision

The Court found no error in the sentencing judge's assessment of high moral culpability. The applicant's blood alcohol level substantially exceeded 0.15, he had actively insisted on driving, multiple passengers were put at risk, and both suffered serious injuries. While the case was atypical in several respects (including the victims' existing relationship with the applicant and his early guilty plea), those factors did not undermine the finding of high culpability when weighed against the aggravating circumstances.

The Court also rejected the submission that the sentence was manifestly excessive. The 30-month term with a 15-month non-parole period was within the range appropriate to the objective gravity of the offences and the applicant's culpability, particularly given the severity of one victim's injuries.

The fresh material tendered on appeal, intended to show that the more seriously injured victim had returned to work before sentencing, was treated with scepticism by the Court. Basten JA noted that no explanation was offered for why this information had not been placed before the sentencing judge or included in the agreed statement of facts. The Court signalled that such material must be tendered in accordance with established practice, and warned that the growing tendency to place before the Court material that should have been adduced below, or that belongs more appropriately before the Parole Board, warrants closer scrutiny. The admissibility question was ultimately left unresolved because the material was not inconsistent with the agreed facts before the sentencing judge.

The sole error identified was a technical deficiency in the sentencing order. It did not separately articulate a non-parole period and a balance of term as required by s 44 of the Crimes (Sentencing Procedure) Act 1999. The Court corrected this by restating the sentence in the required form, while making clear that the effective outcome for the applicant was unchanged.

Orders Made

  • Leave to appeal granted, but only to amend the form of the sentencing orders
  • Sentences quashed and re-imposed in the following form on each count:
  • Non-parole period of 15 months commencing 14 February 2005 and expiring 13 May 2006, being the date of release to parole
  • Balance of term of 15 months commencing 14 May 2006

Key Takeaways

  • A finding of high moral culpability in an aggravated dangerous driving case is not limited to cases displaying the specific aggravating factors listed in R v Whyte; those factors are illustrative, not exhaustive, and vary in intensity on the facts of each case.
  • Where sentencing orders fail to separately state a non-parole period and a balance of term as required by s 44 of the Crimes (Sentencing Procedure) Act 1999, that is a technical error which may be corrected on appeal without requiring a redetermination of the underlying sentence.
  • Fresh material tendered for the first time on sentence appeals must serve a clear purpose and be tendered in accordance with established practice; the Court of Criminal Appeal signalled it will scrutinise more carefully material that could and should have been placed before the sentencing court.
  • An atypical offending profile under the R v Whyte guideline (here, multiple victims with serious injuries and a disturbing traffic history) does not preclude a finding of high culpability simply because other features of the case, such as a guilty plea or the offender's relationship to the victims, point in a different direction.
  • Receiving fresh evidence on an appeal against sentence does not displace ordinary questions of admissibility, including whether the material was reasonably available at the original proceedings.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), s 52A(4)
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 44

Cases:
- R v Whyte (2002) 55 NSWLR 252
- R v Cramp [2004] NSWCCA 164
- Itaoui v R [2005] NSWCCA 415
- R v Errington [2005] NSWCCA 348
- R v Tzanis [2005] NSWCCA 274
- Application by the Attorney General No. 3 of 2002 (2004) 61 NSWLR 305
- R v Takai [2004] NSWCCA 392
- R v Dutton [2005] NSWCCA 248
- R v McMillan [2005] NSWCCA 28
- R v Janceski [2005] NSWCCA 288
- R v Fordham (2 December 1997, unreported)