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56
Court of Criminal Appeal 6 March 2006

ELYARD v. REGINA

[2006] NSWCCA 43

Assault & violenceDrugsTraffic & driving
CRIMINAL LAW APPEAL AGAINST SENTENCE INGESTION OF A COMBINATION OF DRUGS DISCOUNT FOR GUILTY PLEA GUIDELINE JUDGMENT IN JURISIC PROSPECTS OF REHABILITATION

Citation: Elyard v Regina [2006] NSWCCA 43
Court: NSW Court of Criminal Appeal
Date: 6 March 2006
Judge(s): Basten JA; Howie J; Hall J

Background

The applicant drove through a red light while under the influence of a combination of drugs and struck a pedestrian, causing grievous bodily harm. He was charged with aggravated dangerous driving occasioning grievous bodily harm under the Crimes Act 1900. The aggravating element was that his ability to drive was very substantially impaired by drug ingestion.

The applicant pleaded guilty in the District Court and was sentenced by Maguire DCJ to five years imprisonment with a non-parole period of two years and six months. He sought leave to appeal on sentence to the Court of Criminal Appeal.

  • Whether the sentencing judge wrongly treated aggravating features as additional sentencing factors when those features were already elements of the offence, contrary to s 21A(2) of the Crimes (Sentencing Procedure) Act 1999
  • Whether the sentencing judge erred in rejecting the applicant's expressions of remorse without an evidentiary basis for doubting their genuineness
  • Whether the sentencing judge properly assessed the applicant's prospects of rehabilitation
  • Whether the identified errors, individually or collectively, were sufficient to warrant the Court of Criminal Appeal substituting a different sentence
  • Whether the guideline judgment in R v Jurisic remained applicable and how it interacted with the structured approach to aggravating and mitigating factors under s 21A

Decision

The Court found specific errors in the sentencing process. The sentencing judge had treated certain aggravating features, including the degree of intoxication, as additional aggravating factors when those features were properly elements of the offence itself. Section 21A(2) of the Crimes (Sentencing Procedure) Act 1999 prohibits a court from having "additional regard" to an aggravating factor where it constitutes an element of the offence charged.

Basten JA clarified the operation of s 21A in some detail. He noted that terms such as "aggravating factors" carry nuance: they generally identify circumstances that place an offence above the mid-range of moral culpability. The prohibition in s 21A(2) against double-counting elements of an offence is clear in its intent, but its precise application can be difficult. Basten JA observed that the increased maximum penalty for the aggravated form of the offence (11 years, compared with 7 years for the basic offence) already reflects Parliament's assessment of the significance of the aggravating circumstance, and that this legislative calibration is a permissible reference point for sentencing judges.

The Court also found error in the sentencing judge's rejection of the applicant's expressions of remorse without any evidentiary foundation for treating them as insincere. However, notwithstanding these identified errors, the Court concluded that the ultimate sentence of five years with a non-parole period of two years and six months was not outside the appropriate range for an offence of this objective seriousness and level of moral culpability. Accordingly, no lesser sentence was warranted in law, and the appeal was dismissed.

Orders Made

  • Leave to appeal granted
  • Appeal dismissed

Key Takeaways

  • Under s 21A(2) of the Crimes (Sentencing Procedure) Act 1999, a sentencing court cannot treat a matter as an additional aggravating factor where that matter is already an element of the offence being sentenced.
  • Basten JA confirmed that the increased maximum penalty for an aggravated offence, compared with the base offence, provides a legitimate reference point for understanding Parliament's assessment of the weight to be given to an aggravating circumstance.
  • A sentencing judge commits error by rejecting an offender's expressions of remorse as not genuine without any evidentiary basis to support that conclusion.
  • In dismissing the appeal, the Court of Criminal Appeal applied the principle that identified sentencing errors do not automatically produce a different sentence: the appellate court must also be satisfied that the sentence imposed falls outside the appropriate range before substituting its own.
  • Statistical data from cases involving aggravated dangerous driving occasioning grievous bodily harm indicated that the great majority of head sentences exceeded three years, reflecting the seriousness with which the courts treat the aggravated form of the offence.

Legislation and Cases Referenced

Legislation:
- Crimes (Sentencing Procedure) Act 1999 (NSW), especially s 21A
- Crimes Act 1900 (NSW), s 52A
- Road Transport (General) Act 1999 (NSW)
- Road Transport (General) Act 2005 (NSW)
- Criminal Appeal Act 1912 (NSW)

Cases:
- R v Jurisic (1998) 45 NSWLR 209
- R v Way (2004) 60 NSWLR 168
- R v Berg [2004] NSWCCA 300
- R v McMillan [2005] NSWCCA 28
- R v Whyte (2002) 55 NSWLR 252
- R v Thomson & Houlton (2000) 49 NSWLR 383
- R v Simpson (2001) 53 NSWLR 704
- Douar v R [2005] NSWCCA 455
- R v Johnson [2005] NSWCCA 186
- R v Tadrosse [2005] NSWCCA 145
- R v Ancuta [2005] NSWCCA 275
- R v Aslan [2005] NSWCCA 121
- AB v The Queen (1999) 198 CLR 111
- Application by the Attorney General under s 37 of the Crimes (Sentencing Procedure) Act for a Guideline Judgment Concerning the Offence of High Range Prescribed Concentration of Alcohol [2004] NSWCCA 303