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Court of Criminal Appeal 3 August 2020

Rummukainen v R

[2020] NSWCCA 187

HomicideTraffic & driving
CRIME APPEALS APPEAL AGAINST SENTENCE APPLICATION FOR LEAVE TO APPEAL

Citation: Rummukainen v R [2020] NSWCCA 187
Court: Court of Criminal Appeal, NSW
Date: 3 August 2020
Judges: Payne JA (with Wilson J and Ierace J agreeing)

Background

The applicant was found guilty by a jury of dangerous driving occasioning death, following a collision on 27 November 2016 that killed another driver. The applicant had consumed alcohol before driving. A blood sample taken at hospital almost two hours after the collision recorded a blood alcohol concentration (BAC) of 0.07, above the 0.05 legal limit applicable to his licence class.

At sentencing, the judge accepted that expert evidence made it impossible to calculate the applicant's precise BAC at the time of the collision. The judge was not satisfied beyond reasonable doubt that the applicant's BAC exceeded 0.05 at the moment of impact. However, the judge was satisfied that the applicant had been impaired to some extent by alcohol, and took that impairment into account when assessing the objective seriousness of the offence, the applicant's moral culpability, the relevance of a prior drink driving conviction, and general deterrence.

The applicant sought leave to appeal against sentence on one ground, with three particulars: that the sentencing judge erred by considering alcohol consumption at all, given the finding that the Crown had not proved a BAC above 0.05 at the time of the collision.

  • Whether a sentencing judge can consider an offender's alcohol consumption and resulting impairment where the Crown has not proved beyond reasonable doubt that the offender's BAC exceeded the legal limit of 0.05 at the time of the offence
  • Whether the Road Transport Act 2013 (NSW) operated to treat the applicant's BAC as below 0.05, effectively permitting him to drive
  • Whether the alcohol consumption needed to be causally linked to the collision before it could be relevant to objective seriousness or moral culpability
  • Whether alcohol consumption could properly inform the general deterrence aspect of the sentence in these circumstances

Decision

The Court of Criminal Appeal granted leave to appeal but dismissed the appeal, finding no error in the sentencing judge's approach.

On the core issue, the Court held that uncontradicted expert evidence established that any level of alcohol in the blood causes some impairment to driving skills. Because the sentencing judge relied on this finding of impairment (not on a finding that the applicant had committed a separate drink driving offence), there was no requirement that the Crown first prove a BAC above 0.05. The evidence of impairment was legitimately before the sentencing judge and was properly taken into account.

The Court rejected the submission that the Road Transport Act 2013 (NSW) effectively licensed the applicant to drive. The Act provides that a BAC recorded in an evidential certificate is taken to be correct unless the offender proves the actual concentration at the time of driving was below the legal limit. The applicant could not have proved that in this case, and the Act did not operate to immunise the drinking from consideration at sentence.

The Court also confirmed that a causal link between the alcohol consumption and the collision was not required before drinking could be treated as relevant to objective seriousness and moral culpability. The applicant had consumed a substantial quantity of alcohol before driving a considerable distance, yet could offer no explanation for crossing to the wrong side of the road. In that context, his prior drink driving conviction was also properly considered. The Court further confirmed that the sentencing judge was entitled to observe that consuming alcohol before driving significantly increases risk to other road users, and that this observation grounded the relevance of drinking to general deterrence, even without a finding of a BAC above 0.05.

Orders Made

  • Application for leave to appeal: granted
  • Appeal: dismissed

Key Takeaways

  • A sentencing court may take alcohol consumption and resulting impairment into account even where the Crown has not proved beyond reasonable doubt that the offender's BAC exceeded the legal limit, provided there is evidence of actual impairment.
  • Uncontradicted expert evidence that any detectable blood alcohol level causes some impairment to driving skills formed a sufficient basis for the sentencing judge to act on.
  • No causal link between alcohol consumption and the actual collision is required before alcohol-related impairment can be treated as relevant to objective seriousness and moral culpability at sentencing.
  • In dismissing the appeal, the Court of Criminal Appeal confirmed that general deterrence considerations may properly incorporate observations about the elevated risk posed by driving after drinking, even below the prescribed legal limit.
  • The Road Transport Act 2013 (NSW) does not operate, through its evidential certificate provisions, to render an offender's pre-drive drinking irrelevant at sentencing merely because the offender may have been under the 0.05 limit at the time of the offence.

Legislation and Cases Referenced

Legislation
- Criminal Appeal Act 1912 (NSW), s 5(1)(c)
- Crimes Act 1900 (NSW), s 52A(1)(c)
- Road Transport Act 2013 (NSW), ss 108, 110, sch 3 cl 31

Cases
- Filippou v The Queen (2015) 256 CLR 47; [2015] HCA 29
- Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25
- R v Manok [2017] NSWCCA 232; (2017) 81 MVR 427
- R v Millwood [2012] NSWCCA 2
- R v Rummukainen [2019] NSWDC 452 (decision under appeal)
- R v Whyte (2002) 55 NSWLR 252; [2002] NSWCCA 343
- Shashati v R [2018] NSWCCA 167; (2018) 85 MVR 194