Citation: Reddy v R [2018] NSWCCA 212
Court: NSW Court of Criminal Appeal
Date: 3 October 2018
Judge(s): Bathurst CJ, Fullerton J, Campbell J (Campbell J writing)
Background
The appellant was sentenced in the District Court at Goulburn in March 2017 for a single offence of aggravated dangerous driving occasioning grievous bodily harm under s 52A(4) of the Crimes Act 1900 (NSW). The aggravating circumstance was driving with a high range prescribed concentration of alcohol. The offence arose from a high-speed rear-end collision on the Hume Highway in August 2015, in which the driver of the other vehicle suffered serious spinal, chest, and other injuries.
At the time of the collision, the appellant had a blood alcohol reading of approximately 0.27 grams per 100 millilitres, obtained around 90 minutes after the event. Multiple witnesses described erratic driving in the lead-up to the collision, and dash-cam footage corroborated those accounts. The appellant had consumed approximately one litre of scotch the previous evening and, while still heavily intoxicated, embarked on a lengthy drive from Leppington to Canberra.
The sentencing judge imposed a total term with a non-parole period of two years commencing on the date of sentence, 8 March 2017. The appellant sought leave to appeal on two grounds: that the sentencing judge failed to backdate the sentence to account for time spent in a residential rehabilitation program (said to constitute quasi-custody), and that the sentence was manifestly excessive.
Legal Issues
- Whether time spent in a residential rehabilitation program (specifically the Salvation Army's Bridge Program in Canberra) constituted "quasi-custody" sufficient to require the sentence to be backdated under established sentencing principles
- Whether the overall sentence of three years and five months (with a two-year non-parole period) was manifestly excessive given the objective and subjective circumstances
Decision
On the first ground, the Court of Criminal Appeal was satisfied that the appellant's participation in the Salvation Army's Bridge Program from around 4 May 2016 constituted quasi-custody. The program was a residential one in which participants were subject to significant restrictions on their freedom. The Court accepted that the sentencing judge erred by failing to commence the sentence from a date that accounted for this period.
The Court determined the appropriate commencement date to be 8 November 2016. This represented a conservative calculation, acknowledging some uncertainty in the evidence about when the appellant's participation in the various residential programs began and overlapped. The Court declined to backdate the sentence to the earlier date contended for by the appellant.
On the second ground, the Court did not find the sentence manifestly excessive. The sentencing judge had correctly identified the offending as an extreme example of this type of offence, with very high moral culpability. The appellant's subjective case, including genuine remorse, prior good character, and significant rehabilitation efforts, had been properly taken into account. The Court found no error in the weight given to those matters.
The Court also revisited the automatic licence disqualification, which the District Court had not reduced by specific order. Taking into account the appellant's prior good record, his rehabilitation progress, and considerations of reintegration, the Court reduced the automatic disqualification to 18 months from the date of the appellant's release to parole.
Orders Made
- Leave to appeal granted
- Appeal allowed
- District Court sentence set aside and replaced with a term of imprisonment with a non-parole period of 2 years commencing 8 November 2016 and expiring 7 November 2018, with an additional term of 1 year and 5 months commencing 8 November 2018 and expiring 7 April 2020
- Appellant first eligible for parole on 7 November 2018
- Disqualification from holding a driver's licence reduced to 18 months under s 205(2)(d)(ii) of the Road Transport Act 2013 (NSW)
Key Takeaways
- Participation in a residential rehabilitation program can constitute quasi-custody for sentencing purposes, provided the restrictions on a participant's freedom are sufficiently significant. The Court was satisfied that the Salvation Army's Bridge Program met this threshold.
- Where quasi-custody is established, a sentencing judge's failure to backdate the sentence to account for that period constitutes a sentencing error justifying appellate intervention.
- Backdating to account for quasi-custody does not necessarily extend to the full period argued by an appellant. The Court of Criminal Appeal adopted a conservative starting date reflecting the state of the evidence, rather than the earliest date contended for.
- A high blood alcohol reading, erratic pre-collision driving behaviour, and serious injury to another road user will combine to place an aggravated dangerous driving offence at the higher end of objective seriousness, capable of attracting a substantial custodial term even in the presence of compelling subjective factors.
- Under s 206A(3) of the Road Transport Act 2013 (NSW), a disqualification period is automatically extended by the time an offender spends in custody for a major offence, meaning a specific court order fixing the commencement of the disqualification from release is not required.
Legislation and Cases Referenced
Legislation:
- Crimes Act 1900 (NSW), s 52A
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 11
- Road Transport Act 2013 (NSW), ss 205, 206A
Cases:
- Bonett v R [2013] NSWCCA 234
- Gardiner v R [2018] NSWCCA 27
- Griffiths v The Queen (1977) 137 CLR 293
- Hughes v R [2008] NSWCCA 48; (2008) 185 A Crim R 155
- Renshaw v R [2012] NSWCCA 91
- R v Cartwright (1989) 17 NSWLR 243
- R v Jurisic [1998] NSWSC 597
- R v McHugh (1985) 1 NSWLR 588
- R v Whyte (2000) 55 NSWLR 252; [2002] NSWCCA 343
- Vaiusu v R [2017] NSWCCA 71
- Zreika v R [2012] NSWCCA 44; (2012) 223 A Crim R 460