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District Court 1 July 2016

R v PERRIM

[2016] NSWDC 426

HomicideTraffic & drivingPublic order & justice offences
CRIMINAL

Citation: R v Perrim [2016] NSWDC 426
Court: District Court of New South Wales
Date: 1 July 2016
Judge: Judge S Norrish QC

Background

The offender pleaded guilty in the Local Court to two offences arising from a single incident on 14 May 2015 near Wallendbeen, NSW. He was driving a Holden Commodore with two female passengers when police identified his vehicle's registration as cancelled and activated pursuit. The offender accelerated away, reaching speeds he later estimated at approximately 200 kilometres per hour, driving on the wrong side of the road. He had never held a NSW driver's licence.

After police terminated the pursuit for safety reasons, the offender continued at high speed. Both passengers pleaded with him to stop. He refused, telling them he was not going back to gaol. He then lost control of the vehicle, which became airborne and struck an embankment. Rear-seat passenger Ricki Lee Atkinson suffered fatal injuries and was pronounced dead at the scene. Front-seat passenger Danielle O'Brien sustained lacerations, bruising and a haematoma, from which she was expected to recover.

The matter was committed for sentence to the Wagga Wagga sittings of the District Court, where it proceeded to a sentencing hearing. A presentence report was obtained, though Judge Norrish noted it provided limited additional insight into the offender.

  • The appropriate sentences for driving in a manner dangerous causing death in circumstances of aggravation (s 52A(2) and s 52A(7), Crimes Act 1900) and for furious driving causing actual bodily harm (s 53, Crimes Act 1900)
  • The applicable discount for early guilty pleas entered at the first reasonable opportunity
  • How totality and the requirement to avoid double punishment should apply when sentencing for two offences arising from the same conduct
  • Whether the offender's youth and other subjective factors warranted a finding of special circumstances justifying an adjusted ratio of non-parole period to head sentence
  • The appropriate period of licence disqualification, and how time already spent in custody should be reflected in that calculation

Decision

Judge Norrish characterised the offending as extremely serious. The offender had driven at extreme speed on the wrong side of a public highway, fleeing lawful police pursuit, solely to avoid returning to gaol on an outstanding warrant. His statement at the scene, acknowledging he knew he would go to gaol anyway, underscored the recklessness and senselessness of the conduct. The judge described this as "sheer stupidity" that placed passengers and other road users in grave danger, ultimately causing an innocent person's death.

On the principal offence of dangerous driving causing death in circumstances of aggravation, Judge Norrish applied a 25% discount for the early guilty plea, consistent with the guideline in R v Thomson and Houlton. The court acknowledged the offender's youth and certain subjective matters but found these were substantially outweighed by the gravity of the objective circumstances, including that he had chosen to drive despite never having held a licence, and had ignored the pleas of his passengers to stop.

The court applied the principles from Pearce v R and Mill v R to ensure the total effective sentence reflected the totality of the criminality without punishing the offender twice for what was, in substance, a single episode of dangerous driving. The two offences were sentenced to run partly concurrently to achieve an appropriate overall result. The court also found special circumstances existed, given the offender's youth and the need for supervision on release, and adjusted the non-parole period accordingly.

On disqualification, Judge Norrish imposed a period calibrated to account for time already spent in custody since May 2015, so that the effective disqualification from the date of the offence reflected the intended 10-year period for the principal offence.

Orders Made

  • Principal offence (dangerous driving causing death, aggravated, s 52A(2) and s 52A(7)): sentenced to imprisonment, with the non-parole period set so that the offender would be eligible for parole in April 2020
  • Second offence (furious driving causing actual bodily harm, s 53): sentenced to imprisonment, ordered to run partly concurrently with the principal sentence
  • Licence disqualification for the principal offence: 8 years, 10 months and 2 weeks from 1 July 2016 (adjusted for time in custody, with an effective expiry date of approximately 14 May 2025)
  • Licence disqualification for the second offence: 2 years from 1 July 2016 (subsumed within the longer disqualification)
  • Related backup charges: withdrawn and dismissed

Key Takeaways

  • Driving to escape police pursuit is a statutory circumstance of aggravation under s 52A(7) of the Crimes Act 1900 and significantly elevates the seriousness of a dangerous driving causing death charge, carrying a maximum of 14 years' imprisonment.
  • A 25% guilty plea discount applied where the plea was entered at the first reasonable opportunity in the Local Court and the matter was committed for sentence, consistent with the guideline in R v Thomson and Houlton.
  • Where two offences arise from a single episode of driving, the totality principle (confirmed in Pearce v R and Mill v R) requires the court to structure concurrent or partly concurrent sentences so the total does not over-punish the offender for what is essentially one course of conduct.
  • Youth and the need for post-release supervision can constitute special circumstances under the Crimes (Sentencing Procedure) Act 1999, justifying an adjusted ratio between the non-parole period and the head sentence, even where objective seriousness is high.
  • Licence disqualification periods can be adjusted to account for time spent in pre-sentence custody, so that the practical effect of the disqualification reflects the court's intended duration from the date of the offence.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), ss 52A(2), 52A(7), 53
- Crimes (Sentencing Procedure) Act 1999 (NSW)

Cases
- Mill v R (1988) 166 CLR 59
- Pearce v R [1998] 194 CLR 610
- R v Jurisic (1998) 45 NSWLR 209
- R v RCW (No 2) [2014] NSWCCA 190
- R v Thomson and Houlton [2000] NSWCCA 309
- R v Veen (No 2) (1988) 165 CLR 465
- R v Whyte (2002) 55 NSWLR 252
- SBF v The Queen (2009) 198 A Crim R 219