Citation: Ford v Regina [2006] NSWCCA 9
Court: NSW Court of Criminal Appeal
Date: 7 February 2006
Judge(s): Giles JA; Howie J
Background
The applicant, a 20-year-old driver with a poor traffic and criminal history, pleaded guilty in the District Court to two counts of driving in a manner dangerous occasioning grievous bodily harm under s 52A(3) of the Crimes Act 1900, which carries a maximum penalty of seven years imprisonment. The offences arose from a single incident in June 2003 in which the applicant overtook two vehicles at high speed on the wrong side of the road, crossing double lines, before colliding head-on with an oncoming vehicle. Two people sustained serious injuries, including multiple fractures requiring surgical hardware.
The applicant himself sustained significant injuries in the collision, including fractures to his hip, femur, foot, and ankle, as well as a traumatic brain injury. Despite expressions of remorse and evidence of personal hardship, the sentencing judge in the District Court imposed two concurrent terms of imprisonment: a non-parole period of two years and three months, with a balance of nine months. Those sentences ran concurrently with a separate nine-month term imposed following revocation of a periodic detention order.
The applicant sought leave to appeal the severity of the sentences, raising grounds including alleged double counting of aggravating factors between the applicable guideline judgment and the statutory sentencing factors under s 21A of the Crimes (Sentencing Procedure) Act 1999.
Legal Issues
- Whether the sentencing judge engaged in impermissible double counting by using the same aggravating factors both to set the starting point under the guideline judgment and to apply s 21A of the Crimes (Sentencing Procedure) Act 1999
- Whether the concurrent structure of the two sentences was appropriate given the distinct victims involved in each charge
- Whether special circumstances existed, warranting an adjustment to the statutory proportion between the non-parole period and the balance of term
- Whether the overall sentence was manifestly excessive having regard to all relevant factors
Decision
The Court of Criminal Appeal accepted that double counting had occurred. The sentencing judge had used certain aggravating factors both to position the offence within the guideline framework and again under s 21A, which constituted legal error. This was consistent with the approach taken in a line of recent Court of Criminal Appeal decisions addressing the interaction between guideline judgments and s 21A.
Despite finding the error, the Court determined that no lesser overall sentence was warranted in law. The concurrent sentences were described as lenient, particularly given that they ran concurrently with the sentence imposed following revocation of the periodic detention order. The seriousness of the offending, the extent of the victims' injuries, and the applicant's traffic and criminal history all supported maintaining a sentence at that level.
The Court restructured the sentences rather than reducing them, partially to address the question of special circumstances. While no special circumstances were found to arise in respect of the first charge, the partial accumulation of the second sentence onto the first meant that special circumstances should be recognised in relation to the second charge, to preserve the correct statutory ratio between the non-parole period and the balance of term. The applicant's time in the prison hospital, while acknowledged to make custody more onerous, did not warrant a reduction given the overall leniency of the sentences.
Orders Made
- Application for leave to appeal granted; appeal allowed
- Sentences imposed by the District Court quashed
- First charge: non-parole period of 1 year and 10 months commencing 22 March 2005, expiring 21 January 2007; balance of term of 8 months from 22 January 2007; applicant to be released to parole at expiration of non-parole period (subject to the second sentence)
- Second charge: non-parole period of 1 year and 9 months commencing 22 September 2005, expiring 21 June 2007; balance of term of 9 months from 22 June 2007; applicant to be released to parole on 21 June 2007
Key Takeaways
- The Court of Criminal Appeal confirmed that using the same aggravating factors to fix a starting point under a guideline judgment and then again under s 21A of the Crimes (Sentencing Procedure) Act 1999 constitutes impermissible double counting and amounts to legal error.
- A finding of legal error does not automatically result in a reduced sentence. Where the overall sentence remains within the range that is appropriate given the objective seriousness of the offending and the offender's circumstances, the appellate court may maintain the sentence or restructure it without reduction.
- Where two sentences run partly cumulatively, special circumstances may arise in respect of the later sentence to preserve the correct statutory ratio between the non-parole period and the balance of term, even where no special circumstances exist for the first sentence considered alone.
- Injuries sustained by the offender in the course of the dangerous driving may be taken into account as making imprisonment more onerous, but only to a limited degree where those injuries are weighed against the gravity of harm caused to victims.
- Concurrent sentences across multiple charges involving separate victims may be appropriate where the sentencing court and the Crown proceeded on that basis, and the Court of Criminal Appeal declined to restructure the sentences as partly cumulative in the absence of that having been pursued below.
Legislation and Cases Referenced
Legislation
- Crimes Act 1900 (NSW), s 52A(3)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 21A, 50(1)
Cases
- R v Tadrosse [2005] NSWCCA 145
- R v Tzanis [2005] NSWCCA 274
- R v Janceski [2005] NSWCCA 288
- R v McMillan [2005] NSWCCA 28
- R v Acunta [2005] NSWCCA 275
- R v Jurisic (1998) 45 NSWLR 209
- R v Whyte (2002) 55 NSWLR 252
- R v Thomson and Houlton (2000) 49 NSWLR 383