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70
Court of Criminal Appeal 23 November 2018

R v Pullen

[2018] NSWCCA 264

Also reported as (2018) 275 A Crim R 509
Traffic & driving
CRIMINAL LAW APPEAL LEVEL” RESENTENCING PROPER CONSTRUCTION OF SS 17B, 17C, 17D “COMMUNITY SAFETY”

Citation: R v Pullen [2018] NSWCCA 264
Court: NSW Court of Criminal Appeal
Date: 23 November 2018
Judges: Johnson J, Harrison J, Schmidt J

Background

The offender pleaded guilty in the Local Court to two charges arising from a collision on 13 October 2016: dangerous driving occasioning grievous bodily harm, and failing to stop and assist after impact causing grievous bodily harm. Both offences carry a maximum penalty of seven years imprisonment. The offender was committed to the Gosford District Court for sentence.

The offender, a 23-year-old P2 licence holder, drove a friend home after consuming both alcohol and cannabis. On the return trip, he drove through a 40 km/h roadworks zone at excessive speed, ignored his passenger's warnings, and collided with a stationary semi-trailer. His passenger suffered catastrophic leg injuries, including multiple fractures, a skin graft, and permanent internal metalwork. Several road workers were placed at serious risk.

After the collision, the offender climbed out through the driver's window and twice attempted to flee the scene. He was first restrained by road workers and then apprehended by police. The District Court imposed an aggregate sentence of 15 months imprisonment by way of an Intensive Correction Order (ICO). The Crown appealed on the ground that the sentence was manifestly inadequate.

  • Whether the aggregate sentence of 15 months imprisonment was manifestly inadequate for these two offences.
  • Whether the sentencing judge erred in assessing the objective seriousness of the fail to stop and assist offence as "well below the mid-level."
  • Whether the Court of Criminal Appeal should exercise its residual discretion not to intervene despite finding error.
  • On resentencing, whether an ICO remained an appropriate sentencing disposition and, if so, on what conditions.
  • The proper statutory construction of the Intensive Correction Order provisions in the Crimes (Sentencing Procedure) Act 1999, specifically sections 17B, 17C, 17D, 66, and 68, including the meaning of "community safety."

Decision

Harrison J (with Johnson J and Schmidt J agreeing) found that the original sentence was manifestly inadequate. The sentencing judge had correctly placed the dangerous driving offence in the mid-to-high range of moral culpability, given the combination of alcohol and cannabis impairment, excessive speed in a roadworks zone, the presence of multiple workers at risk, and severe injuries to the passenger. However, the starting point of 17 months (before discount) and indicative sentence of 13 months was insufficiently low to reflect that assessment.

The Court found a further error in the treatment of the fail to stop and assist offence. Characterising that offending as "well below the mid-level" of objective seriousness was not sustainable. The offender made two deliberate attempts to flee the scene while his friend remained trapped in the wreckage for over an hour, a course of conduct that warranted a higher assessment.

On the question of residual discretion, the Court declined to exercise it in the offender's favour. The degree of departure from an appropriate sentence was too significant to overlook, notwithstanding the offender's genuine remorse, early plea, limited prior history, and positive rehabilitation prospects.

The Court then considered whether an ICO was appropriate on resentencing. After detailed analysis of the amended sentencing options framework, including the meaning of "community safety" under section 66 and the requirements of sections 17B and 68, the Court concluded that an ICO could still be imposed, but with a substantially longer aggregate term of three years and more demanding conditions.

Orders Made

  • Appeal allowed.
  • Sentence imposed by Bright DCJ on 24 August 2018 quashed.
  • The offender sentenced to an aggregate period of imprisonment of 3 years, to be served by way of an Intensive Correction Order commencing 24 August 2018 and expiring 23 August 2021.
  • The ICO is subject to the following conditions:
  • Must not commit any offence.
  • Must submit to supervision by a community corrections officer.
  • Must perform 650 hours of community service work.
  • Must participate in a rehabilitation program or receive treatment.
  • Must abstain from consuming alcohol and drugs.
  • Must complete the Sober Driver Program if assessed as suitable by supervisor.
  • Disqualified from driving for 2 years commencing 24 August 2018.

Key Takeaways

  • The Court of Criminal Appeal confirmed that a starting point of 17 months for dangerous driving occasioning grievous bodily harm, involving combined alcohol and cannabis impairment, excessive speed in a roadworks zone, and severe injuries, fell below what the objective seriousness of the offending warranted.
  • Twice attempting to flee a scene while an injured passenger remained trapped for over an hour was not properly characterised as "well below the mid-level" of objective seriousness for a fail to stop and assist offence.
  • Under the amended Crimes (Sentencing Procedure) Act 1999, the Court engaged in detailed statutory construction of the ICO regime, including the meaning of "community safety" in section 66, and found that an ICO remained available on resentencing even where the aggregate term was increased substantially.
  • Residual discretion not to intervene in a Crown appeal will not be exercised where the gap between the sentence imposed and an appropriate sentence is significant, even where the offender has demonstrated genuine remorse and good rehabilitation prospects.
  • In assessing the guideline in R v Whyte for dangerous driving offences, courts are required to weigh all relevant aggravating features identified in that judgment, including the number of persons placed at risk and any ignored warnings, not merely those conceded by the Crown.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 52A, 52AB
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 5, 7, 17B, 17C, 17D, 66, 67, 68, 69, 73, 73A, 73B, sch 2 cl 72
- Crimes (Sentencing Procedure) Amendment (Sentencing Options) Act 2017 (NSW)
- Crimes (Administration of Sentences) Act 1999 (NSW), s 81
- Crimes (Administration of Sentences) Regulation 2014 (NSW), cls 186, 187, 189, 189A–189G
- Crimes (Appeal and Review) Act 2001 (NSW), s 68A
- Criminal Appeal Act 1912 (NSW), s 5D

Cases:
- R v Whyte (2002) 55 NSWLR 252; [2002] NSWCCA 343 (dangerous driving guideline judgment)
- House v The King (1936) 55 CLR 499
- Bugmy v The Queen (2013) 249 CLR 571
- Green v The Queen; Quinn v The Queen (2011) 244 CLR 462
- Hili v The Queen; Jones v The Queen (2010) 242 CLR 520
- Markarian v The Queen (2005) 228 CLR 357
- Dinsdale v The Queen (2000) 202 CLR 321
- CMB v Attorney General for NSW (2015) 256 CLR 346
- Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355
- Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (2009) 239 CLR 27
- Federal Commissioner of Taxation v Consolidated Media Holdings Ltd (2012) 250 CLR 503
- R v JW (2010) 77 NSWLR 7
- R v Jurisic (1998) 45 NSWLR 209
- R v Manok [2017] NSWCCA 232
- R v Harris [2015] NSWCCA 81
- R v Barker [2016] NSWCCA 193
- R v Deng (2007) 176 A Crim R 1