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8
Court of Criminal Appeal 2 July 2008

Rosenthal v R

[2008] NSWCCA 149

Assault & violenceTraffic & driving
CRIMINAL LAW: VICTIM THE APPLICANT'S PARTNER LOSS OF UNBORN CHILD

Citation: Rosenthal v R [2008] NSWCCA 149
Court: NSW Court of Criminal Appeal
Date: 2 July 2008
Judge(s): Spigelman CJ, Hidden J, Latham J

Background

The applicant was convicted after a judge-alone trial of driving under the influence of the drug ecstasy, occasioning grievous bodily harm, contrary to s 52A(3) of the Crimes Act. In the early hours of 6 March 2005, he drove from Sydney's eastern suburbs to the Blue Mountains and back, with his thirty-three weeks pregnant partner in the passenger seat. Near Glenbrook, the car left the Great Western Highway and collided with concrete barriers. His partner was seriously injured, and their unborn child was killed.

A post-accident blood sample showed a reading of 0.45 milligrams of ecstasy per litre. Expert evidence established that the applicant's driving ability was slightly to moderately impaired at the time. The trial judge rejected arguments that a defective braking system, poor lighting, and road features caused the accident independently of the drug, and found no reasonable explanation for the collision other than driver error.

In the District Court, the applicant was sentenced to 3½ years imprisonment with a non-parole period of 2½ years. He sought leave to appeal that sentence to the Court of Criminal Appeal, arguing it was manifestly excessive.

  • Whether the District Court sentence of 3½ years (non-parole period of 2½ years) was manifestly excessive having regard to the circumstances of the offence and the applicant's subjective case.
  • Whether the applicant's status as a disqualified driver and as a person on bail at the time of the offence were properly characterised as factors relevant to the level of "abandonment of responsibility" within the Whyte and Jurisic guideline sentencing framework.
  • What weight, if any, to give to mitigating factors, including the applicant's medical conditions (ADHD and Tourette's disorder), his belief that ecstasy controlled his Tourette's symptoms, his tolerance for the drug, and the fact that the victim was his own partner.

Decision

Hidden J (with whom Spigelman CJ and Latham J agreed) found that the District Court judge had erred in one material respect: the fact that the applicant was a disqualified driver and on bail at the time of the accident was not properly relevant to the question of whether he had "abandoned responsibility" for his conduct in the sense used in the guideline judgments. That concept, derived from R v Whyte and R v Jurisic, relates to the driver's responsibility for the act of drug-impaired driving itself, not to other concurrent circumstances of conditioned liberty or prior disqualification.

The Court accepted that a sentence above the two-year guideline was nonetheless warranted, given the circumstances of the offence and the unfavourable aspects of the applicant's antecedents. The applicant lacked the three mitigating features typically present in a guideline case: good character with limited prior convictions, a guilty plea, and genuine remorse. The sentencing judge had correctly found no remorse about the offending conduct itself, even though the applicant was distressed about the consequences.

However, the Court identified two further features of a typical guideline case that were absent and which favoured the applicant. First, the victim was not a stranger but his own partner, who had provided a statement forgiving him and expressing commitment to their ongoing relationship. Second, the applicant himself suffered serious injuries and also bore the loss of the unborn child. Added to this, the applicant's Tourette's disorder, which was likely to make prison life particularly difficult, and his borderline intellectual capacity, warranted weight in the subjective assessment.

Balancing these considerations, the Court concluded that a total term of three years imprisonment with a non-parole period of one year and nine months was the appropriate sentence, representing a reduction from the sentence imposed below.

Orders Made

  • Leave to appeal granted.
  • Appeal allowed.
  • Sentence imposed in the District Court quashed.
  • In lieu, the applicant sentenced to imprisonment comprising a non-parole period of 1 year and 9 months, commencing 18 December 2006 and expiring 17 September 2008, and a balance of term of 1 year and 3 months, commencing 18 September 2008 and expiring 17 December 2009.
  • The applicant directed to be released on parole on 17 September 2008.

Key Takeaways

  • The guideline concept of "abandonment of responsibility" in drug-impaired driving offences under s 52A of the Crimes Act is directed at the offender's conduct in driving while drug-affected, not at other contemporaneous circumstances such as being a disqualified driver or on bail. Treating those additional factors as aggravating the level of abandonment constitutes an error in sentencing principle.
  • A sentence above the two-year Jurisic/Whyte guideline remained appropriate where none of the three standard mitigating features (good character, guilty plea, genuine remorse) were present.
  • Where the victim of a drug-impaired driving offence is the offender's intimate partner rather than a stranger, and the partner has expressed forgiveness and maintained the relationship, those circumstances can operate as mitigating factors distinguishing the case from a typical guideline scenario.
  • The Court of Criminal Appeal confirmed that the Whyte guideline involves consideration of multiple features of a "frequently recurring case," and their absence can cut in either direction, for or against the offender, when calibrating the appropriate sentence.
  • Serious medical conditions affecting an offender's experience of imprisonment, such as Tourette's disorder, are relevant subjective matters in the sentencing exercise and can support a finding of special circumstances justifying a longer balance of term.

Legislation and Cases Referenced

Legislation:
- Crimes Act (NSW), s 52A(3) (driving under the influence of a drug occasioning grievous bodily harm; maximum seven years imprisonment)
- Crimes Act (NSW), s 52A(8) (statutory defence where the accident was not attributable to the drug's effect)

Cases:
- R v Whyte (2002) 55 NSWLR 252 (Court of Criminal Appeal guideline judgment on sentencing for dangerous driving offences)
- R v Jurisic (1998) 45 NSWLR 209 (earlier Court of Criminal Appeal guideline judgment reviewed in Whyte)