Citation: Gommesen v R [2012] NSWCCA 226
Court: NSW Court of Criminal Appeal
Date: 1 November 2012
Judges: McClellan CJ at CL, McCallum J, Garling J
Background
The applicant was driving a borrowed vehicle along a road in Duranbah, northern NSW, at around 10.30pm on 19 December 2009. He had been drinking heavily since approximately 5pm and acknowledged in cross-examination that he was "really, really drunk" and "too drunk to know what he was doing" when he got behind the wheel. His vehicle left the road, slid approximately 56 metres, and collided with a power pole, killing his half-brother who was a front-seat passenger.
The applicant's blood alcohol reading at hospital was 0.172 grams per 100 millilitres of blood. A pharmacologist's report confirmed his driving ability was very substantially impaired. He pleaded guilty to aggravated dangerous driving occasioning death contrary to s 52A(2) of the Crimes Act 1900, receiving a 25 per cent discount for his early plea. The District Court sentenced him to 4 years imprisonment with a non-parole period of 2 years 6 months.
On appeal to the Court of Criminal Appeal, the applicant argued that the sentencing judge had wrongly assessed his moral culpability as high, relying on two allegedly flawed factual foundations: an erroneous inference from the short distance travelled before the crash, and an improper use of his prior drink-driving conviction.
Legal Issues
- Whether the sentencing judge erred in assessing the objective seriousness of the offence by drawing an impermissible inference from the short distance driven before the collision
- Whether the sentencing judge gave improper weight to the applicant's prior criminal record (a previous conviction for driving with an excessive blood alcohol concentration) when assessing moral culpability
- Whether, if errors were established in the reasoning, a lesser sentence was nonetheless warranted under s 6(3) of the Criminal Appeal Act 1912
Decision
Garling J (with McClellan CJ at CL and McCallum J agreeing) found that leave to appeal ought to be granted but that the appeal should be dismissed.
On the first ground, the court accepted that the sentencing judge's inference that the applicant had driven poorly before the accident, based on the short distance he had travelled from the party, was not soundly based on the agreed facts. The facts established only that the accident occurred about 200 metres from the party, not that the brevity of the journey itself demonstrated particularly dangerous driving. That specific inference was held to be erroneous.
On the second ground, the court accepted that the prior drink-driving conviction was a matter properly going to the applicant's antecedents and to sentencing considerations such as specific deterrence and protection of the community, rather than to the objective gravity of the offence itself. The sentencing judge appeared to have used it in assessing moral culpability, which was an impermissible use. McCallum J noted, however, that it was possible the judge had intended a narrower reference consistent with the principles in R v Whyte, acknowledging that the applicant above all others should have understood his responsibility not to drive in those circumstances.
Despite identifying an erroneous pathway of reasoning, the Court of Criminal Appeal concluded that the ultimate finding of high moral culpability was correct. The applicant had a prior drink-driving conviction, knew he was too drunk to drive, drove anyway with two passengers including a juvenile under his supervision, and caused the death of his half-brother. The sentence of 4 years with a 2 years 6 months non-parole period fell within the accepted range for offences of this kind, and no lesser sentence was warranted.
Orders Made
- Leave to appeal granted
- Appeal dismissed
Key Takeaways
- The Court of Criminal Appeal confirmed that a prior criminal conviction for a similar offence is relevant to sentencing considerations such as specific deterrence and protection of the community, but is not ordinarily a proper basis for elevating the objective seriousness or moral culpability of the current offence.
- Even where a sentencing judge follows an erroneous path of reasoning, the Court of Criminal Appeal will not reduce a sentence if the ultimate conclusion reached was correct and the sentence imposed falls within the accepted range.
- Under s 6(3) of the Criminal Appeal Act 1912, the appellate court must independently consider whether a lesser sentence is warranted in law, and will decline to intervene where the overall sentence is proportionate to the objective gravity and subjective circumstances of the offence.
- A finding that the offender knew he was severely intoxicated before choosing to drive, and did so with passengers, can support a conclusion of high moral culpability for an offence of aggravated dangerous driving occasioning death even absent proof of particular pre-collision driving conduct.
- In dismissing the appeal, the court weighed the applicant's genuine remorse, early guilty plea, and the profound personal consequences of killing a close family member, but found those matters did not justify a departure from the sentence imposed.
Legislation and Cases Referenced
Legislation:
- Crimes Act 1900 (NSW), s 52A(2) (aggravated dangerous driving occasioning death, maximum penalty 14 years imprisonment)
- Crimes (Sentencing Procedures) Act 1999 (NSW)
- Criminal Appeal Act 1912 (NSW), ss 5(1)(c) and 6(3)
Cases:
- R v Whyte [2002] NSWCCA 343; (2002) 55 NSWLR 252
- Veen v R (No.2) [1988] HCA 14; (1988) 164 CLR 465
- R v McNaughton [2006] NSWCCA 242; (2006) 66 NSWLR 566
- R v Errington [2005] NSWCCA 348; (2005) 157 A Crim R 553
- R v Gonzales [2006] NSWCCA 4
- R v Takai [2004] NSWCCA 392; (2004) 149 A Crim R 593
- R v Wickham [2004] NSWCCA 193