Citation: Regina v Read [2010] NSWCCA 78
Court: NSW Court of Criminal Appeal
Date: 3 May 2010
Judge(s): Giles JA; Hulme J; Latham J
Background
The respondent, a 20-year-old university student, attended a birthday party where he consumed approximately three-quarters of a 700ml bottle of bourbon over several hours. Late that evening, he performed a "burnout" on a residential street outside the party address, creating so much tyre smoke that visibility was eliminated. His vehicle then collided with two parked cars, shunting one of them forward into two young women seated in the gutter.
Both women suffered serious leg injuries requiring surgery involving screws and plates. One sustained compound fractures to her tibia and fibula; the other fractured bones in her ankle and foot. The respondent left the scene before police arrived, though he later handed himself in and cooperated with investigators. He pleaded guilty to two counts of dangerous driving occasioning grievous bodily harm under s 53A(3)(c) of the Crimes Act 1900, carrying a maximum of seven years imprisonment.
The District Court sentenced the respondent to concurrent non-parole periods of 12 months, with balances of term of 12 months, to be served by periodic detention. The Crown appealed, arguing the sentences were manifestly inadequate and that complete concurrency failed to reflect the full criminality involved.
Legal Issues
- Whether completely concurrent sentences were appropriate where a single act of dangerous driving injured two separate victims
- Whether periodic detention was an appropriate mode of serving the sentences
- Whether the sentencing judge gave insufficient weight to general deterrence and the objective seriousness of the offences, while giving excessive weight to the respondent's subjective circumstances
- Whether the overall sentences were manifestly inadequate
Decision
The Court of Criminal Appeal allowed the appeal on all grounds. Giles JA (with whom Hulme J and Latham J agreed) held that complete concurrency was an error in principle where two people were injured by the same act of dangerous driving. While full accumulation was not required, some degree of accumulation was necessary to reflect the totality of the criminality involved. Imposing entirely concurrent sentences treats the harm caused to the second victim as if it were irrelevant to the overall sentence.
On the mode of serving the sentence, the Court held that periodic detention was inappropriate given the guideline judgment in R v Whyte (2002) 55 NSWLR 252. That guideline makes clear that mid-range dangerous driving offences of this kind ordinarily warrant full-time custody, and the sentencing judge had not identified sufficient grounds to depart from it. The respondent's prior driving history, including multiple speeding offences and a licence suspension for accumulated demerit points, reinforced the need for a sentence that reflected general deterrence.
The Court acknowledged the respondent's genuine remorse, early guilty plea, cooperation with police, and positive prospects for rehabilitation. It reduced the first sentence by three months to account for the periodic detention already served. However, these subjective factors did not outweigh the objective seriousness of offences involving two seriously injured victims and a pattern of disregard for road rules.
Orders Made
- The Crown appeal was allowed.
- The sentences imposed by Robison DCJ (imprisonment by way of periodic detention) were set aside.
- For the offence involving grievous bodily harm to the first victim: imprisonment for a non-parole period of 14 months commencing 3 May 2010, with a balance of term of 1 year.
- For the offence involving grievous bodily harm to the second victim: imprisonment for a non-parole period of 11 months commencing 3 November 2010, with a balance of term of 1 year.
- The respondent became eligible for release to parole on 2 October 2011.
- The conviction and fine for mid-range prescribed concentration of alcohol, and the driving disqualification orders, were not disturbed (they were not subject to appeal).
Key Takeaways
- Where one act of dangerous driving injures two separate victims, complete concurrency of sentences fails to reflect the full criminality involved; some accumulation is required, even if full accumulation is not.
- The guideline judgment in R v Whyte (2002) 55 NSWLR 252 remains the applicable framework for dangerous driving offences, and sentencing courts must adhere to it absent sufficient justification for departure.
- Periodic detention was found to be an inappropriate mode of sentence for offences of this objective seriousness, reinforcing that the Whyte guideline points toward full-time custody in mid-range cases.
- Positive subjective circumstances, including genuine remorse, an early guilty plea, and good rehabilitation prospects, do not automatically justify a departure from the principles established in the guideline judgment.
- Partial credit was available for periodic detention already served, but the Court distinguished this from cases warranting broader leniency due to appeal delays, finding no such delay had occurred here.
Legislation and Cases Referenced
Legislation:
- Crimes Act 1900 (NSW), s 53A(3)(c) (dangerous driving occasioning grievous bodily harm)
Cases cited:
- R v Whyte [2002] NSWCCA 343; (2002) 55 NSWLR 252 (guideline judgment)
- R v Jurisic (1998) 45 NSWLR 209
- Markarian v The Queen (2005) 228 CLR 357
- Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321
- R v Hersi [2010] NSWCCA 57
- R v JW [2010] NSWCCA 39
- R v Hallocoglu (1992) 29 NSWLR 67
- R v Pangallo (CCA, 13 August 1991, unreported)
- R v McVittie [2002] NSWCCA 344
- Application of Attorney-General (No 3 of 2002) [2004] NSWCCA 303; (2004) 61 NSWLR 305
- R v Cahayadi [2007] NSWCCA 1
- R v Janceski [2005] NSWCCA 288
- TG v R [2010] NSWCCA 28
- Various other NSWCCA decisions cited in argument