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Court of Criminal Appeal 19 November 2007

Money v R

[2007] NSWCCA 317

Assault & violenceTraffic & driving

Citation: Money v R [2007] NSWCCA 317
Court: NSW Court of Criminal Appeal
Date: 19 November 2007
Judge(s): Giles JA, Hislop J, Price J

Background

The appellant pleaded guilty in the District Court to dangerous driving causing grievous bodily harm under s 52A(3) of the Crimes Act 1900, carrying a maximum of seven years imprisonment. The charge arose from an incident on 5 August 2005 on the Pacific Highway near Maclean, during which the appellant drove erratically for an extended period, repeatedly crossing into oncoming traffic, before a series of collisions resulted in serious injuries to another driver.

The sentencing judge imposed a non-parole period of two years and nine months, with a balance of term of one year and six months, commencing December 2006. The appellant, represented by senior counsel, sought leave to appeal on the basis that the sentence was manifestly excessive.

The incident involved prolonged and extremely dangerous driving over a significant distance. Witnesses observed the appellant's vehicle weaving across double centre lines on multiple occasions, forcing numerous oncoming drivers to take evasive action. The eventual collision involved three vehicles, including a B-double truck, all of which sustained extensive damage. The appellant continued driving south after the crash, apparently unaware of what had occurred behind him.

  • Whether the sentence imposed was manifestly excessive, such that a different, less severe sentence ought to have been imposed.
  • Whether the sentencing judge gave adequate weight to the appellant's subjective circumstances, including his drug dependency, psychological difficulties, and prospects of rehabilitation.
  • Whether statistical data from the Judicial Commission of NSW, indicating the sentence was at or above the typical range, established that the sentence was outside the proper discretionary range.

Decision

The Court of Criminal Appeal found no error in the sentencing judge's approach and dismissed the appeal. Hislop J, with whom Giles JA and Price J agreed, concluded that the sentence fell within the discretionary range properly open to the sentencing judge.

The court accepted the sentencing judge's characterisation of the appellant's moral culpability as very high. The nature of the driving was described as among the worst of its kind, involving a prolonged gross abandonment of responsibility over an extended stretch of highway. Although the injuries suffered by the victim were serious and left him with long-term disability, the court noted they were not at the most catastrophic end of the grievous bodily harm spectrum. However, the sheer number of people placed at risk of death or serious injury weighed heavily against the appellant, with the absence of further casualties described as purely fortuitous.

The court rejected the argument that the sentencing judge failed to consider subjective factors. The judge had regard to those factors but appropriately gave them less weight given the strong need for public deterrence in cases of this kind. On the statistical evidence from the Judicial Commission, the court confirmed that while statistics showed the sentence was at the upper end of the range, statistical data does not define the ceiling. The ceiling remains the maximum penalty set by Parliament, in this case seven years.

Orders Made

  • Leave to appeal granted.
  • Appeal dismissed.

Key Takeaways

  • Statistical sentencing data published by the Judicial Commission of NSW indicates the distribution of sentences imposed in comparable cases but does not fix the upper limit of the available range. The maximum penalty set by Parliament remains the true ceiling.
  • In dismissing the appeal, the Court of Criminal Appeal confirmed that sentencing is a discretionary judgment and that sentences in other cases are of limited comparative value, given that the facts of each case are distinct.
  • Where an offence involves prolonged dangerous driving that places a large number of people at risk of death or serious injury, the fortuitous absence of further harm does not diminish the objective seriousness of the conduct.
  • The need for public deterrence in serious dangerous driving cases may properly reduce the weight given to an offender's subjective circumstances, including psychological difficulties and prospects of rehabilitation.
  • No error is established in a sentencing discretion merely because a sentence falls at the upper end of the statistical range, provided it remains within the boundaries set by Parliament and reflects the particular facts of the case.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), s 52A(3) (dangerous driving causing grievous bodily harm)

Cases:
- R v Jurisic (1998) 45 NSWLR 209
- R v Whyte (2002) 55 NSWLR 252
- Markarian v The Queen (2005) 215 ALR 213