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Court of Criminal Appeal 6 December 2007

LAWRENCE v R

[2007] NSWCCA 349

Traffic & driving

Citation: Lawrence v R [2007] NSWCCA 349
Court: NSW Court of Criminal Appeal
Date: 6 December 2007
Judge(s): Grove J, Hulme J, Simpson J

Background

The applicant pleaded guilty at the first available opportunity to aggravated dangerous driving occasioning death and high-range prescribed concentration of alcohol (PCA), arising from a collision on the F3 Freeway in the early hours of 5 March 2006. Driving north at around the 110 km/h speed limit, the applicant's vehicle struck the rear of another car, killing a passenger. His blood alcohol concentration at the time was assessed at approximately 0.170 g per 100 ml, more than double the legal limit and above the aggravated threshold under s 52A of the relevant legislation.

The applicant had attended a bucks party and decided not to drive, leaving his car at a friend's house. After further drinking later that evening, he walked to retrieve his car and drove to visit a girlfriend in Newcastle. Evidence showed he was driving erratically before the collision.

In the District Court, Judge Marien sentenced the applicant to a total of six years' imprisonment with a non-parole period of four years, assessing his moral culpability as "extremely high" and the objective seriousness of the offence as falling at the upper end. The applicant sought leave to appeal, arguing the sentence was manifestly excessive and that insufficient weight had been given to his subjective circumstances.

  • Whether the sentence of six years' imprisonment with a four-year non-parole period was manifestly excessive for aggravated dangerous driving occasioning death.
  • Whether the sentencing judge gave adequate weight to the applicant's subjective circumstances, including his prior good character, genuine remorse, and the severe psychological impact the offence had upon him.
  • Whether the sentencing judge placed inappropriate weight on the applicant's speed at the time of the collision.

Decision

The Court of Criminal Appeal granted leave to appeal and allowed the appeal, finding that the sentencing judge gave inadequate weight to the applicant's subjective circumstances. The Court noted the applicant had no prior convictions of any kind, had been in stable employment since leaving school, and had received strongly positive character references. His reaction to the death he caused was described as "extraordinarily severe," with psychological reports showing high levels of clinical anxiety, depression, and guilt.

Hulme J rejected the argument that the sentencing judge had given inappropriate weight to the applicant's speed, accepting that the judge's reference to speed was simply to underscore the heightened danger posed by his level of intoxication while travelling at a legal but high speed. However, the Court was satisfied that the failure to give adequate weight to subjective circumstances, including the punishment the applicant was already suffering independently of any court-imposed penalty, constituted appellable error.

The Court acknowledged the competing demands that these cases present: an offender with an otherwise exemplary record guilty of one act of serious stupidity, weighed against the need to deliver justice to the victim's family and to deter others. While recognising its role as a court of error (not a court entitled to simply substitute its own preferred sentence), the Court was satisfied that error was established and that the sentence should be reduced.

Orders Made

  • Leave to appeal against sentence granted; appeal allowed.
  • Sentence for aggravated dangerous driving occasioning death quashed and replaced with imprisonment comprising a non-parole period of three years commencing 1 December 2006 (expiring 30 November 2009) and an additional term of two years commencing 1 December 2009.
  • Disqualification from holding a driver's licence for five years commencing 5 March 2006 (expiring 4 March 2011).
  • Sentence on the high-range PCA charge of imprisonment for a fixed term of 18 months, with five years' licence disqualification, confirmed and to be served concurrently.
  • First date for eligibility for parole specified as 30 November 2009.

Key Takeaways

  • The Court of Criminal Appeal confirmed that it can only intervene in a sentencing decision where appellable error is established; it is not sufficient that individual judges would have imposed a different penalty at first instance.
  • Inadequate weight given to an offender's subjective circumstances, including prior good character and the genuine psychological toll of the offending, can constitute such an error warranting intervention.
  • Where a blood alcohol level falls towards the lower end of the aggravated PCA range, that positioning is a relevant consideration in assessing objective seriousness, even where the overall conduct remains serious.
  • A reference to speed in a sentencing judgment does not necessarily constitute error; the Court found that the reference here was properly directed to explaining the dangerous interaction between the applicant's intoxication and the speed at which he was travelling.
  • Sentencing in cases of this kind requires explicit balancing of the need for general deterrence and justice for victims against the individual offender's circumstances, and failing to give proper weight to the latter can misalign the final sentence.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), s 52A (aggravated dangerous driving occasioning death; prescribed concentration of alcohol)

Cases:
- R v Jurisic (1998) 45 NSWLR 209
- R v Whyte (2002) 55 NSWLR 252