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Court of Criminal Appeal 19 March 2008

R v Carruthers

[2008] NSWCCA 59

Traffic & driving
CRIMINAL LAW CROWN APPEAL AGAINST SENTENCE STEPS IN SENTENCING PROCESS WHETHER SENTENCE MANIFESTLY INADEQUATE

Citation: R v Carruthers [2008] NSWCCA 59
Court: NSW Court of Criminal Appeal
Date: 19 March 2008
Judge(s): McClellan CJ at CL, James J, Simpson J

Background

The respondent pleaded guilty in the District Court to one count of aggravated dangerous driving occasioning grievous bodily harm, an offence carrying a maximum penalty of 11 years imprisonment under the Crimes Act 1900. The charge arose from a collision on 5 August 2006 in which the respondent, driving with a blood alcohol concentration of 0.220 g per 100 ml, turned across the path of an oncoming motorcyclist. The victim suffered crush injuries including bilateral ankle fractures and was thrown from his motorcycle; as a professional dancer and fashion model, he stated his career was effectively ended by the injuries.

At sentencing, the District Court imposed a non-parole period of 1 year, 8 months and 7 days, with a balance of term of 6 months and 22 days, to be served by way of periodic detention, together with a 3-year driving disqualification. The Crown appealed against that sentence under section 5D of the Criminal Appeal Act 1912, arguing the order for periodic detention was inappropriate and the overall sentence was manifestly inadequate.

  • Whether the sentencing judge erred by considering alternatives to full-time custody without first fixing the appropriate full-time sentence
  • Whether periodic detention was an appropriate mode of serving the sentence for this offence, given the level of blood alcohol and the seriousness of the injuries caused
  • Whether the sentence, even setting aside the periodic detention order, was manifestly inadequate
  • Whether the principles of general and specific deterrence were adequately reflected in the sentence

Decision

The Court of Criminal Appeal upheld the Crown appeal, finding that the District Court's order for periodic detention was not appropriate in the circumstances. McClellan CJ at CL (with James J and Simpson J agreeing) emphasised that the sentencing process requires a judge to first determine the appropriate length of full-time custody, and only then to consider whether an alternative form of custody is justified. Allowing the prospect of alternatives to influence the initial sentencing decision constitutes a procedural error.

The Court reaffirmed established authority that periodic detention is a significantly more lenient outcome than full-time custody, and that such leniency will rarely be appropriate for offences under section 52A(4) of the Crimes Act. Where the offence involves a substantially elevated blood alcohol reading and causes serious injury, full-time custody will almost always be required to meet the demands of punishment and both general and specific deterrence.

The Court noted several factors that made the offence particularly serious: the respondent's blood alcohol was 0.220 g per 100 ml, well above the prescribed concentration threshold for the aggravated offence; his physical condition at the scene confirmed a marked degree of impairment; the victim's injuries were significant; and this was the respondent's third drink-driving offence. The Court acknowledged the respondent's subjective circumstances, including his history of alcohol dependence linked to personal trauma, his co-operation with police, and his prior good character, but found those matters did not displace the need for full-time custody.

Consistent with the principle that double-jeopardy considerations apply in Crown appeals, the Court declined to increase the length of the term and instead rounded the original figures to whole months. The sentence was restructured to require the same non-parole period and balance of term to be served in full-time custody.

Orders Made

  • Appeal upheld
  • The sentence imposed in the District Court is quashed
  • The respondent is sentenced to a non-parole period of 1 year and 8 months commencing 5 September 2007, with a balance of term of 6 months; the respondent was eligible for release on parole on 4 May 2009
  • The order for disqualification from driving is affirmed

Key Takeaways

  • In Crown appeals against sentence, the Court of Criminal Appeal will apply a double-jeopardy principle, meaning the restructured sentence will not exceed the original term even where the original sentence was considered inadequate.
  • A sentencing court must determine the appropriate period of full-time custody before turning to whether an alternative custodial arrangement is available; collapsing those two steps into one constitutes an error in the sentencing process.
  • Periodic detention will rarely be appropriate for aggravated dangerous driving occasioning grievous bodily harm where blood alcohol is substantially elevated and the offence causes serious injury, given the weight the court must give to general and specific deterrence.
  • Where an offender drives with a very high blood alcohol reading and causes serious physical harm, full-time custody is the expected outcome in most cases, even where significant mitigating factors such as a guilty plea, a history of alcohol dependence, and prior good character are present.
  • Under section 52A(4) of the Crimes Act 1900, the aggravated version of dangerous driving occasioning grievous bodily harm carries a maximum of 11 years imprisonment, and sentencing courts are expected to reflect the seriousness with which Parliament has treated drink-driving that results in serious injury.

Legislation and Cases Referenced

Legislation:
- Criminal Appeal Act 1912 (NSW), s 5D
- Crimes Act 1900 (NSW), s 52A(4)
- Crimes (Sentencing Procedure) Act 1999 (NSW)

Cases:
- Dinsdale v The Queen (2000) 202 CLR 321
- Gillett v R [2006] NSWCCA 370
- Re Attorney General's Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 (NSW) (No 3 of 2002) [2004] NSWCCA 303
- R v Doyle [2006] NSWCCA 118
- R v Hallocoglu (1992) 29 NSWLR 67
- R v Jurisic (1998) 45 NSWLR 209
- R v McMillan [2005] NSWCCA 28
- R v Sutton [2004] NSWCCA 225
- R v Whyte (2002) 55 NSWLR 252
- R v Zamagias [2002] NSWCCA 17