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District Court 14 April 2009

R v Morrow

[2009] NSWDC 78

HomicideDrugsTraffic & driving
CRIMINAL LAW SENTENCE OFFENCES AGAINST THE PERSON DRIVING OFFENCES PRESCRIBED CONTENT OF ALCOHOL

Citation: R v Morrow [2009] NSWDC 78
Court: District Court of New South Wales
Date: 14 April 2009
Judge(s): Murrell SC DCJ

Background

The offender, a 41-year-old woman with no significant prior criminal record, pleaded guilty to two counts of aggravated dangerous driving occasioning death under s 52A(2) of the Crimes Act 1900 (NSW). The charges arose from a head-on collision on a wet road in the Maitland area at approximately 11.45pm on 1 February 2008. The offender's vehicle crossed double unbroken centre lines into oncoming traffic, killing a husband and wife travelling north in the opposite lane.

The circumstance of aggravation in each count was the prescribed concentration of alcohol in the offender's blood. A blood test taken approximately one hour and 45 minutes after the collision recorded a reading of 0.161 grams per 100 millilitres, above the prescribed threshold of 0.15. A forensic scientist gave evidence that this level would impair driving skills, particularly in an emergency, and would impair general driving ability in the vast majority of individuals.

The offender surrendered her bail on 5 November 2008 and was in pre-sentence custody from that date. Her personal background included a prolonged abusive relationship that had contributed to problematic alcohol and drug use in the period leading up to the offence.

  • What weight should the Jurisic and Whyte guideline judgments carry when sentencing for aggravated (rather than non-aggravated) dangerous driving occasioning death?
  • How should the objective seriousness of the offences be assessed given the circumstances of aggravation under s 52A(7)?
  • What sentence length and structure appropriately reflects the deaths of two victims arising from a single course of conduct?
  • How should the court balance general deterrence, denunciation, and the offender's considerable personal mitigation?

Decision

The court considered the guideline judgments in R v Jurisic and R v Whyte, which set out a framework for assessing non-aggravated dangerous driving offences by locating them on a spectrum from momentary inattention to abandonment of responsibility. Murrell SC DCJ observed that this spectrum is of limited utility when sentencing for aggravated offences under s 52A(2), because the statutory circumstances of aggravation in s 52A(7) almost inherently involve an abandonment of responsibility. The guideline features remained relevant to assessing objective seriousness, but the court applied them with that limitation in mind.

On objective seriousness, the court found the offending to be of significant gravity. The offender had consumed substantial quantities of alcohol, driven a vehicle late at night on a wet road, and crossed into oncoming traffic well into the northbound lane. The court acknowledged her mitigating circumstances, including her good character, her role as a sole parent, her lack of a meaningful prior record, her early plea of guilty, and the destructive relationship that contributed to her alcohol use. The court also found no real risk of reoffending, which reduced the weight given to rehabilitation as a sentencing objective.

General deterrence was identified as a primary sentencing purpose, alongside denunciation, accountability, and recognition of the harm caused to the victims' families. The court received victim impact statements describing the devastating effect of the deaths on the surviving son and other relatives of the couple, who died only 500 metres from their home. Comparative cases, including the Court of Criminal Appeal decisions in R v Veatufunga and Whybrow v R, informed the court's assessment of an appropriate range.

Because two people died, the court imposed partially accumulated sentences to reflect the full extent of the offending. It regarded accumulation as essential where a single course of conduct causes multiple deaths, even where the events occurred simultaneously.

Orders Made

  • Convicted on each count of aggravated dangerous driving occasioning death.
  • Count 1 (offence involving Mrs Lowe): non-parole period of 3 years from 5 November 2008; balance of term of 1 year; sentence expires 4 November 2012.
  • Count 2 (offence involving Mr Lowe): sentence accumulated by 12 months; non-parole period of 2 years from 5 November 2009; balance of term of 2 years; sentence expires 4 November 2013.
  • Effective total sentence: 5 years with a 3-year non-parole period; earliest parole eligibility 4 November 2011.
  • Special circumstance found: first term of imprisonment.
  • Licence disqualification until 4 May 2013.
  • Matters on the s 166 certificate withdrawn and dismissed on Crown application.

Key Takeaways

  • The Jurisic and Whyte guideline judgment framework, which locates offending on a spectrum from momentary inattention to abandonment of responsibility, has reduced analytical utility in cases of aggravated dangerous driving, because the statutory circumstances of aggravation under s 52A(7) almost inherently involve an abandonment of responsibility.
  • Where a single driving incident causes the deaths of two people, partial accumulation of sentences is appropriate to reflect the full extent of the harm, even if both deaths result from a simultaneous act.
  • General deterrence carries particular weight in alcohol-aggravated dangerous driving cases, given the legislature's deliberate use of prescribed blood alcohol thresholds to identify and punish elevated risk-taking.
  • A defendant's considerable personal mitigation, including good character, early guilty plea, and background circumstances contributing to alcohol misuse, can reduce the sentence imposed but does not displace the primacy of denunciation and deterrence in this category of offending.
  • Comparative sentencing data, including JIRS statistics and Court of Criminal Appeal decisions such as Veatufunga and Whybrow, formed part of the sentencing court's reference point for arriving at an appropriate range.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), ss 52A(2), 52A(7), 52AA
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 21A (general sentencing purposes); s 166 (certificate)

Cases
- R v Jurisic (1998) 45 NSWLR 209 (guideline judgment, dangerous driving)
- R v Whyte (2002) 55 NSWLR 252 (guideline judgment, dangerous driving)
- R v Veatufunga [2007] NSWCCA 54 (Crown appeal, aggravated dangerous driving)
- Whybrow v R [2008] NSWCCA 270 (defence appeal, aggravated dangerous driving)