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Court of Criminal Appeal 4 June 2008

Regina v Nguyen

[2008] NSWCCA 113

HomicideTraffic & driving
CROWN APPEAL ON SENTENCE DANGEROUS DRIVING OCCASIONING DEATH EARLY PLEA OF GUILTY

Citation: Regina v Nguyen [2008] NSWCCA 113
Court: NSW Court of Criminal Appeal
Date: 4 June 2008
Judge(s): James J, Hoeben J, Hall J

Background

The respondent, a 19-year-old provisional licence holder, pleaded guilty to one count of dangerous driving occasioning death under s 52A(1)(c) of the Crimes Act 1900. On the evening of 25 August 2006, he drove a vehicle after drinking, with a blood alcohol level estimated at between 0.098 and 0.12 at the time of impact, while travelling well in excess of the 50 kph speed limit in a residential street in Cecil Hills. He lost control of the vehicle, which mounted a kerb and struck a timber fence; one of the fence logs penetrated the car and fatally injured the rear passenger.

The respondent had a poor driving history, including prior speeding fines and a breach of his provisional licence conditions on multiple occasions. Notably, just five days before the fatal crash, he had been booked for a low-range PCA offence.

In the District Court, Sides DCJ imposed a sentence with a non-parole period of 12 months and a balance of term of 15 months, together with a five-year licence disqualification. The Crown appealed, contending the sentence was manifestly inadequate and that the sentencing judge had failed to correctly apply the guideline judgment in R v Whyte.

  • Whether the sentencing judge correctly applied the guideline judgment in R v Whyte [2002] NSWCCA 343 to the facts of this case
  • Whether the sentence imposed was manifestly inadequate, having regard to the significant aggravating features present
  • How the sentencing court should treat an early plea of guilty in the context of the Whyte guideline
  • What weight should be given to the respondent's personal circumstances, including remorse and prospects of rehabilitation, on resentencing

Decision

The Court of Criminal Appeal, in reasons delivered by Hoeben J (with James J and Hall J agreeing), allowed the Crown appeal and quashed the District Court sentence. The Court found the sentencing judge had not given proper effect to the Whyte guideline judgment when applied to the particular facts, which carried several significant aggravating features.

Those aggravating features included: the respondent's blood alcohol level at the time of the crash; his decision to drive knowing he had been drinking and in breach of his provisional licence conditions; his poor driving history, including the PCA booking only days before the fatal crash; his awareness of the curved nature of the road; and his driving well in excess of the speed limit in a residential area. The Court was satisfied that, together, these features placed the offending at the more serious end of the range established by Whyte.

The Court acknowledged that, on a Crown appeal, restraint must be exercised and that the sentence imposed on resentencing will ordinarily sit at the lower end of the available range. Starting from a notional head sentence of at least five years, but applying that restraint together with the sentencing judge's finding of special circumstances and the benefit of the early guilty plea, the Court resentenced the respondent to a non-parole period of 18 months with an equal balance of term of 18 months.

On the licence disqualification, the Court noted that the five-year disqualification imposed below would, when combined with the respondent's prior driving record, trigger a further administrative disqualification of another five years. Having regard to the respondent's employment prospects on release, the Court treated a total disqualification of that length as excessive and fixed a single period of five years from the commencement of sentence.

Orders Made

  • The Crown appeal is allowed and the District Court sentence is quashed
  • In lieu thereof, the respondent is sentenced to imprisonment with a non-parole period of 18 months commencing 14 November 2007 and expiring 13 May 2009, with a balance of term of 18 months expiring 13 November 2010
  • The respondent is disqualified from holding or obtaining a licence from 14 November 2007 to 13 November 2012, with a direction that no further period of disqualification be imposed beyond that provided for

Key Takeaways

  • The Whyte guideline judgment must be applied with close attention to the cumulative weight of aggravating features; a sentence that does not reflect those features in any meaningful way is liable to be set aside as manifestly inadequate.
  • Where a Crown appeal against sentence succeeds, the Court of Criminal Appeal will exercise restraint in resentencing, imposing a term at the lower end of the available range rather than what the Court would have imposed at first instance.
  • A prior driving record that includes recent PCA offences and repeated breaches of provisional licence conditions constitutes a significant aggravating factor in dangerous driving occasioning death sentencing.
  • In assessing the appropriate disqualification period, the Court of Criminal Appeal took into account the interaction between a court-imposed disqualification and any consequential administrative disqualification triggered by the offender's prior record, treating the combined effect as relevant to proportionality.
  • An early plea of guilty and evidence of genuine remorse remain relevant mitigating factors, but they do not displace the need to properly reflect objective seriousness in the head sentence.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), s 52A(1)(c)

Cases
- R v Whyte [2002] NSWCCA 343; 55 NSWLR 252 (guideline judgment for dangerous driving)
- R v Jurisic (1998) 45 NSWLR 209
- R v McNaughton [2006] NSWCCA 242; 66 NSWLR 566
- R v Wall [2002] NSWCCA 42 (restraint on Crown appeals)
- Gillett v R [2006] NSWCCA 370
- Veen v The Queen (No 2) (1988) 164 CLR 465