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Court of Criminal Appeal 9 December 2014

R v Kyle

[2014] NSWCCA 300

Traffic & driving
CRIMINAL LAW APPEAL APPEAL AGAINST SENTENCE WHETHER SENTENCE MANIFESTLY INADEQUATE OBJECTIVE SERIOUSNESS OF OFFENCE

Citation: R v Kyle [2014] NSWCCA 300
Court: Court of Criminal Appeal (NSW)
Date: 9 December 2014
Judge(s): Macfarlan JA, Hidden J, Adams J (unanimous)

Background

The respondent pleaded guilty to aggravated dangerous driving causing grievous bodily harm, contrary to s 52A(4) of the Crimes Act 1900 (NSW). The offence arose from a daytime collision on a country road in which the respondent's vehicle crossed four metres over the double centre lines and struck an oncoming motorcyclist. A witness observed the respondent's head slumped on his chest just before impact, suggesting he may have fallen asleep at the wheel.

The respondent had consumed extreme quantities of alcohol the previous evening and into the early hours of the morning, resulting in an ambulance call and admission to hospital. He was discharged in the mid-afternoon with a blood alcohol concentration later calculated at approximately 0.242 g/100ml at the time of the collision. Despite being tested at nearly three and a half times the general limit, the respondent took a taxi to retrieve his car and drove home, apparently believing the drip administered in hospital had cleared the alcohol from his system.

The victim, a motorcycle rider aged 36, suffered catastrophic and permanent injuries: a fractured pelvis, multiple rib fractures, spinal cord injury, cardiac arrest, renal failure, and permanent paraplegia. He was confined to a wheelchair, required daily assistance, suffered constant pain, and could no longer work. The Director of Public Prosecutions appealed the original sentence of 3 years imprisonment with a non-parole period of 1 year and 9 months as manifestly inadequate.

  • Whether the original sentence of 3 years imprisonment was manifestly inadequate having regard to the objective seriousness of the offence
  • Whether special circumstances existed justifying a departure from the statutory ratio between the non-parole period and the total term under s 44 of the Crimes (Sentencing Procedure) Act 1999 (NSW)
  • Whether the Court of Criminal Appeal should exercise its residual discretion to decline to interfere with the sentence, even if error were established

Decision

Adams J (with whom Macfarlan JA and Hidden J agreed) found that the sentencing judge had erred by assessing the objective seriousness of the offence too leniently. The respondent's blood alcohol level was more than double the prescribed concentration qualifying the offence as aggravated, and the binge-drinking and subsequent decision to drive in that condition represented a substantial abandonment of personal responsibility. The sentencing judge had accepted these findings in his remarks but had not given them sufficient weight in fixing the penalty.

On the question of special circumstances, the Court found no adequate basis had been established to depart from the statutory ratio. While the original judge varied the ratio, the Court concluded the circumstances did not justify that variation in a case of this seriousness.

The Court then turned to the residual discretion, applying the principles from Green v The Queen and considering factors such as delay, the imminence of parole, and the effect of resentencing on rehabilitation. None of those countervailing factors applied with any significant force in this case. Adams J also noted, in exercising the discretion, that the situation of the victim, who was left with severe permanent disabilities and constant pain, deserved consideration alongside the interests of the respondent.

The Court allowed the appeal and imposed a moderately increased sentence, describing the increase as necessary to reflect the true objective gravity of the offending.

Orders Made

  • The appeal was allowed
  • The original sentence was quashed and replaced with a term of 4 years 6 months imprisonment, commencing 17 March 2014, comprising a non-parole period of 2 years 9 months and a balance of term of 1 year 9 months
  • The respondent became eligible for parole consideration on 17 December 2016

Key Takeaways

  • A blood alcohol concentration more than double the prescribed aggravating threshold, combined with prior hospitalisation for the same binge episode, placed this offence towards the higher end of objective seriousness for aggravated dangerous driving under s 52A(4).
  • Where a sentencing court identifies substantial moral culpability and significant impairment in its remarks but fails to translate those findings into the sentence imposed, the resulting sentence may be vulnerable to a Crown appeal as manifestly inadequate.
  • The residual discretion under s 5D of the Criminal Appeal Act does not operate as a general shield against correction; the Court of Criminal Appeal confirmed that guidance to sentencing courts remains a central purpose of Crown appeals, even where individual circumstances call for some restraint.
  • In exercising the residual discretion to resentence, the court may have regard to the position of the victim, including the permanence and severity of injuries sustained, alongside considerations of the respondent's rehabilitation.
  • No special circumstances justifying a variation to the statutory non-parole ratio under s 44 of the Crimes (Sentencing Procedure) Act 1999 were established in this case.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), s 52A(4)
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 44

Cases:
- Application by the Attorney General No 3 of 2002 (The PCA Guideline Judgment) [2004] NSWCCA 303; 61 NSWLR 305
- Green v The Queen; Quinn v The Queen [2011] HCA 49
- R v Millwood [2012] NSWCCA 2
- R v Jurisic (1998) 45 NSWLR 209
- R v Whyte [2002] NSWCCA 343; 55 NSWLR 252
- Wong v The Queen (2001) 76 ALJR; 185 ALR 233