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Court of Criminal Appeal 17 December 2010

Black v R

[2010] NSWCCA 321

Traffic & driving
CRIMINAL LAW LEAVE TO APPEAL SENTENCE NO ERROR ESTABLISHED NOT ESTABLISHED LEAVE TO APPEAL GRANTED APPEAL DISMISSED

Citation: Black v R [2010] NSWCCA 321
Court: NSW Court of Criminal Appeal
Date: 17 December 2010
Judge(s): Simpson J, Kirby J, Schmidt J (Schmidt J delivering the principal judgment, with Simpson and Kirby JJ agreeing)

Background

The applicant was sentenced in the District Court following guilty pleas to a range of offences arising from a Melbourne Cup Day incident in Newcastle in November 2008. The most serious charge was dangerous driving occasioning grievous bodily harm. While driving a Toyota 4Runner with several passengers, the applicant executed a U-turn over a raised median strip before one passenger had closed the rear door. Two passengers were ejected from the vehicle. One suffered a catastrophic head injury, including extensive skull fractures and diffuse brain swelling, leaving her with permanent and serious disabilities.

The applicant did not stop to assist the victim immediately. He briefly returned toward the scene but then drove away, forming the basis of a separate charge of failing to stop and assist after a vehicle impact causing grievous bodily harm. He was also driving while disqualified at the time, adding further charges to the matter.

Murrell DCJ sentenced the applicant to an overall term of two years and nine months imprisonment, with a non-parole period of one year and nine months. A 25% discount was applied for the early guilty plea, and special circumstances were found, which affected the ratio between the non-parole period and the head sentence.

  • Whether the sentencing judge failed to correctly apply the guideline judgment in R v Whyte (2002) 55 NSWLR 252 when sentencing for dangerous driving occasioning grievous bodily harm.
  • Whether, as a consequence of any such failure, the head sentence was calculated from a wrong starting point.
  • Whether the sentence imposed for dangerous driving occasioning grievous bodily harm was manifestly excessive.

Decision

The Court rejected the argument that the sentencing judge had misapplied the R v Whyte guideline. That guideline was formulated for a "typical" case carrying specific characteristics, including a young offender of good character, a single victim, genuine remorse, and a plea of guilty of limited utilitarian value. The Court found that the applicant's case departed materially from that typical profile in several respects.

The applicant had a poor driving record, including a prior dangerous driving offence in which others were put at risk, and multiple convictions for driving while disqualified. He was unlicensed at the time of the offence. The driving, while brief and not at high speed, was sufficiently erratic to eject two people from the vehicle. The victim suffered severe, lifelong consequences. Taken together, the Court held that a finding of low moral culpability was simply not open, and a heavier penalty than the guideline minimum was warranted.

The Court also rejected the manifest excess ground. The sentencing judge had properly taken into account mitigating factors, including the applicant's youth, genuine remorse, and his coming forward before arrest. The finding of special circumstances reflected these matters. The Court concluded that no error had been established, and the sentence fell within the proper exercise of the sentencing discretion.

Orders Made

  • Leave to appeal granted.
  • Appeal dismissed.

Key Takeaways

  • The R v Whyte guideline judgment sets parameters for a "typical" case of dangerous driving occasioning grievous bodily harm; where an offender's circumstances depart significantly from that profile, a sentence exceeding the guideline minimum is not necessarily erroneous.
  • No error was established where the sentencing judge imposed a penalty above the R v Whyte minimum, given the applicant's prior dangerous driving history, repeated disqualified driving, and the serious and permanent nature of the victim's injuries.
  • A finding of low moral culpability is not available where the driving, even if brief and not at high speed, results in two people being ejected from a vehicle and the circumstances reflect inattention to passenger safety and disregard for disqualification orders.
  • Mitigating factors such as youth, remorse, and an early plea are not automatically determinative; courts must weigh them against considerations of deterrence and the objective seriousness of the offending.
  • In dismissing the appeal, the Court of Criminal Appeal reinforced that guideline judgments describe minimums for typical cases, not ceilings or default starting points for all cases within the relevant offence category.

Legislation and Cases Referenced

Legislation
- Crimes (Sentencing Procedure) Act 1999 (NSW)
- Crimes Act 1900 (NSW), ss 52A(3)(c), 52AB(2)
- Road Transport (Driver Licensing) Act 1988 (NSW), s 25A(1)(a)
- Road Transport (Driver Licensing) Act 1998 (NSW), s 22(1)(b)
- Road Transport (General) Act 2005 (NSW), s 205(5)

Cases
- R v Whyte [2002] NSWCCA 343; (2002) 55 NSWLR 252
- Markarian v The Queen [2005] HCA 25; (2005) 228 CLR 357
- Georgopolous v R [2010] NSWCCA 246