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Court of Criminal Appeal 25 February 2009

Dunn v R

[2009] NSWCCA 10

Assault & violenceTraffic & drivingPublic order & justice offences

Citation: Dunn v R [2009] NSWCCA 10
Court: NSW Court of Criminal Appeal
Date: 25 February 2009
Judge(s): McClellan CJ at CL, James J, Adams J

Background

The appellant pleaded guilty in the District Court to several offences arising from events on 21 October 2006. He had been driving a stolen motor vehicle when, after a collision with another car, police gave chase. During the pursuit, the appellant deliberately reversed the vehicle into the pursuing police car on two occasions, causing both officers to fear serious injury.

When arrested, the appellant was found to be carrying a kitchen knife. Inquiries also revealed he had never held a driver's licence in New South Wales. He was 30 years old at sentencing, had an extensive criminal history including multiple terms of imprisonment, and was on conditional liberty at the time of the offences.

District Court Judge English sentenced the appellant in November 2007. The appellant sought leave to appeal against those sentences in the Court of Criminal Appeal.

  • Whether the sentence imposed for the principal offence (using a motor vehicle as an offensive weapon to prevent lawful apprehension, contrary to s 33B of the Crimes Act) was correct in length and structure.
  • Whether the sentencing judge erred in imposing a nine-month term for the offence of driving without ever having been licensed, a charge properly categorised as a "related offence" rather than a "back-up offence" under the Criminal Procedure Act.
  • If error was established, what the correct non-parole period and head sentence for the s 33B offence should be, having regard to the interaction with an earlier partially-served sentence.

Decision

James J (with McClellan CJ at CL and Adams J agreeing) found that the sentencing judge had misclassified two charges. They were "related offences" under the Criminal Procedure Act, not "back-up offences," and the sentence imposed for driving without ever having been licensed under s 25(2) of the Road Transport (Driver Licensing) Act 1998 was therefore affected by legal error.

The Court found, however, that this error did not infect the sentences imposed for the two principal offences. The sentencing judge's determinations on those charges were reached independently of the misclassified related offences.

Because the head sentence for the s 33B offence was reduced from six years to five years three months, a corresponding reduction to the non-parole period was also required. The Court calculated the revised non-parole period by maintaining the same proportionality between the non-parole component and the total effective custodial period, taking into account nine months the appellant was required to serve under the balance of parole from an earlier sentence. Applying that proportional approach, and rounding to the nearest month, the Court set a new non-parole period of three years.

Orders Made

  • Leave to appeal against the sentences imposed by Judge English on 19 November 2007 granted.
  • The sentence for the s 33B Crimes Act offence quashed and replaced with a non-parole period of three years commencing 27 July 2007 and expiring 26 July 2010, with a balance of term of two years three months.
  • The sentence for the s 25(2) Road Transport (Driver Licensing) Act 1998 offence quashed.
  • The earliest date for the appellant's eligibility for release on parole fixed at 26 July 2010.
  • All other sentences imposed by Judge English confirmed.

Key Takeaways

  • Using a motor vehicle deliberately to ram pursuing police vehicles constitutes a serious example of the s 33B Crimes Act offence, attracting significant weight on general deterrence, particularly where the offender was on conditional liberty at the time.
  • The Court of Criminal Appeal confirmed that offences dealt with alongside principal charges must be correctly classified as either "back-up" or "related" offences under the Criminal Procedure Act; the distinction carries procedural and sentencing consequences.
  • An error in dealing with a related offence does not automatically vitiate sentences imposed for the principal offences, where the record shows those sentences were reached independently.
  • Where a head sentence is reduced on appeal, the non-parole period requires corresponding adjustment to maintain appropriate proportionality, including any period to be served under a pre-existing parole obligation.
  • In dismissing most grounds of appeal, the Court left the bulk of the original sentencing structure intact, making only targeted corrections to the specific elements affected by identified error.

Legislation and Cases Referenced

Legislation:
- Crimes Act (NSW), ss 33B, 154A(1)(b)
- Crimes (Sentencing Procedure) Act (NSW)
- Criminal Procedure Act (NSW), Div 7, Pt 3, Ch 3
- Road Transport (Driver Licensing) Act 1998 (NSW), s 25(2)
- Road Transport (Safety and Traffic Management) Act 1999 (NSW), s 42(2)
- Summary Offences Act (NSW), s 11B(1)
- Road Transport (Safety and Traffic Management) (Road Rules) Regulations (NSW)

Cases: No cases were cited in the judgment.