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Court of Criminal Appeal 3 November 2009

BROOKS v REGINA

[2009] NSWCCA 265

Traffic & driving
CRIMINAL LAW APPEAL AGAINST SENTENCE APPLICANT SUFFERED INJURIES APPEAL DISMISSED

Citation: Brooks v Regina [2009] NSWCCA 265
Court: NSW Court of Criminal Appeal
Date: 3 November 2009
Judge(s): McClellan CJ at CL, Buddin J, Hall J

Background

The applicant pleaded guilty in the Local Court to two counts of aggravated dangerous driving occasioning grievous bodily harm under s 54A(4) of the Crimes Act 1900. Both counts arose from a single incident on 5 September 2006, when the applicant drove an unregistered, unregistered custom-built hot rod while heavily intoxicated (blood alcohol level of 0.162 g/100mL), lost control of the vehicle, and caused it to roll multiple times. All occupants, including two friends, were ejected because no seat belts were fitted.

The applicant himself suffered serious injuries in the crash, including leg and vertebrae fractures, hearing loss, loss of an eye, and chronic back pain requiring a brace. At sentencing in the District Court, Graham ADCJ imposed a total sentence of three years and six months, with a non-parole period of two years, after applying a 25% discount for the early guilty plea.

The applicant sought leave to appeal on the basis that the sentencing judge had failed to treat his crash-related injuries as "extra-curial punishment" (that is, punishment suffered outside the formal court process, as a direct consequence of his offending) and had therefore not given them sufficient mitigating weight.

  • Whether the sentencing judge failed to take into account the applicant's injuries, sustained during the commission of the offences, as extra-curial punishment in mitigation of sentence.
  • Whether the absence of the phrase "extra-curial punishment" from the sentencing remarks indicated that the sentencing judge had overlooked this mitigating consideration.

Decision

Hall J, with whom McClellan CJ at CL and Buddin J agreed, dismissed the appeal. His Honour found that the sentencing judge had plainly and specifically considered the applicant's ongoing disabilities, including persistent back pain, the need for a back brace, and the general difficulties the applicant would face in custody due to his physical condition.

The sentencing judge had noted the applicant's GP's opinion that he would have difficulty coping in a gaol environment, and had made a finding of special circumstances partly on that basis, expressly acknowledging that the applicant was "deserving of some consideration by way of leniency." The Court of Criminal Appeal was satisfied that this reflected a genuine and adequate allowance for the hardship the applicant's injuries would cause during incarceration.

The Court also noted that, at the original sentencing hearing, counsel for the applicant had not in fact used the phrase "extra-curial punishment" in submissions. Hall J held that the sentencing judge's failure to use that specific term did not demonstrate any failure to engage with the substance of the concept. What mattered was whether the underlying considerations had been addressed, and on the evidence of the remarks on sentence, they had been.

The Court further observed that the applicant had a significant prior criminal history, including a past conviction for culpable driving occasioning grievous bodily harm, which indicated a continuing disregard for road laws. The degree of accumulation of the two sentences (six months) was not considered excessive in those circumstances.

Orders Made

  • Leave to appeal granted.
  • Appeal dismissed.

Key Takeaways

  • A sentencing judge is not required to use the precise term "extra-curial punishment" when mitigating a sentence for injuries suffered by an offender during the commission of an offence, provided the substance of that consideration is genuinely addressed in the sentencing remarks.
  • Where a sentencing judge expressly considers the impact of an offender's physical disabilities on the likely experience of imprisonment, and makes a finding of special circumstances on that basis, that may constitute adequate recognition of the mitigating effect of injuries sustained during the offence.
  • The Court of Criminal Appeal confirmed that the absence of a specific legal label in sentencing remarks does not, of itself, establish error, particularly where the underlying factual matters have been clearly engaged with.
  • In dismissing the appeal, the Court took into account the applicant's prior history of serious driving offences, which supported the overall sentence length and the degree of accumulation imposed.
  • No error was established in the sentencing discretion exercised by the District Court, and the total effective sentence of three years and six months was upheld as appropriate.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), s 54A(4)

Cases:
- Regina v Allpass (1993) 72 A Crim R 561
- Regina v Azar [2000] NSWCCA 26
- Regina v Badanjak [2004] NSWCCA 395
- Regina v Burrell (2004) 114 A Crim R 207
- Regina v Daetz; Regina v Wilson (2003) 139 A Crim R 398
- Regina v Clampitt-Wotten (2002) 37 MVR 340
- Regina v Smith (1987) 44 SASR 587
- Whybrow v Regina [2008] NSWCCA 270