AI-generated summaries. Not legal advice. Always verify against the official judgment on NSW Caselaw.
← All decisions
5
Court of Criminal Appeal 15 April 2020

You, Jae Bok v R

[2020] NSWCCA 71

HomicideTraffic & driving

Citation: You, Jae Bok v R [2020] NSWCCA 71
Court: Court of Criminal Appeal
Date: 15 April 2020
Judge(s): Basten JA at [1]; Rothman J at [24]; Cavanagh J at [33]

Background

The applicant pleaded guilty in the District Court to dangerous driving occasioning death under s 52A(1)(c) of the Crimes Act 1900 (NSW) and to furious driving causing bodily harm under s 53. On the afternoon of 22 December 2017, after attending a work function where he consumed alcohol, he drove at approximately 100 kph in a 50 kph zone, struck a bus stop sign, and continued driving before colliding heavily with a stationary parked vehicle. The collision killed one occupant and left the other seriously injured, with two days in intensive care.

The applicant was sentenced to 4 years 1 month imprisonment for the principal offence, with a non-parole period of 2 years 7 months, after a 25% discount for an early guilty plea. The lesser offence attracted a 10-month term, partially accumulated so the effective total sentence was 4 years 6 months.

The applicant sought leave to appeal the sentence on two grounds: that the sentencing judge misapplied the guideline judgment in R v Whyte, and that the sentence was manifestly excessive given his subjective circumstances. The Court also identified a clerical error in the court record for the lesser offence that required correction.

Legal Issues

  • Whether the sentencing judge erred in applying the guideline judgment in R v Whyte, specifically by misunderstanding the criterion of a "plea of guilty of limited utilitarian value"
  • Whether the sentence was manifestly excessive, having regard to the applicant's subjective circumstances including character, remorse, rehabilitation, and personal history
  • Whether statements made by the sentencing judge during the hearing could be used to establish error in the written judgment on sentence
  • Whether a clerical error in the court record for the lesser offence required correction
  • Whether the De Simoni principle was engaged by the sentencing judge's treatment of the applicant's blood alcohol concentration (raised by Rothman J)

Decision

Ground 1: Misapplication of the Whyte guideline

The applicant argued that an exchange between the sentencing judge and counsel during the hearing showed the judge had confused the guideline's criterion of a "plea of limited utilitarian value" with the applicant's full-value early plea, thereby misapplying the guideline to the applicant's detriment. Cavanagh J rejected this argument. The sentencing judgment itself was comprehensive, delivered two months after the hearing, and clearly reflected that the judge understood the case did not conform to several characteristics of the typical Whyte case, including on the question of the plea (at [81]-[85]). The guideline sets a floor, not a ceiling, and identifying a higher sentence than the guideline minimum does not itself establish error (at [82]).

Basten JA addressed the broader methodological point firmly: judicial error cannot be established by importing remarks made during a hearing exchange into the written judgment (at [19]). That course may only be warranted in narrow circumstances, such as where a brief ex tempore judgment immediately follows submissions and plainly relies on an understanding formed during them. That was not this case (at [20]).

Ground 2: Manifest excess

The applicant contended the sentencing judge gave insufficient weight to his powerful subjective case, which included exceptional character, remorse, rehabilitation, PTSD, physical injuries, no prior relevant criminal record, and extensive charitable and community involvement. The Court found the sentencing judge expressly addressed each of these matters and weighed them through instinctive synthesis against the objective seriousness of the offence and the need for general deterrence (at [102]). The finding of high moral culpability, based on the applicant's abandonment of responsibility in driving while impaired, continued driving after striking the sign, and the absence of any braking before impact, supported the sentence reached (at [57]-[58], [54]).

Comparison with three cases involving higher blood alcohol readings and younger offenders with less favourable subjective circumstances did not reveal a sentencing pattern the judge had ignored, nor a sentence so far outside the range as to suggest error (at [115]-[116]). The manifest excess ground was not made out.

Clerical error in the lesser sentence record

Basten JA identified that the court record for the s 53 offence contained a statement that the offender was to be released on parole on a specified date, which formed no part of the orders pronounced in open court and contradicted what the judge told the applicant in open court (at [7]). This statement was inconsistent with the legislative framework that applied following the repeal of s 50 of the Crimes (Sentencing Procedure) Act 1999 and the operation of s 158(4) of the Crimes (Administration of Sentences) Act 1999 (at [8]-[9]). Leave was granted and the offending words were ordered deleted (at [10]).

The De Simoni issue (Rothman J)

Rothman J observed that the sentencing judge's treatment of the applicant's "mid-range" blood alcohol concentration raised a potential question under the De Simoni principle, which prohibits reliance on circumstances that could have been the subject of a separate, more serious charge. However, the statutory definition of "prescribed concentration of alcohol" for the aggravated offence under s 52A(7) requires 0.15g or more per 100mL. The applicant's concentration of 0.091g per 100mL fell well below that threshold, so the De Simoni principle was never engaged on the facts (at [29]-[30]).

Orders Made

  • Leave granted to the applicant to appeal from the sentences imposed in the District Court on 14 June 2019
  • The statement "The offender is to be released to parole on 13 January 2020" deleted from the record of the sentence for the s 53 offence of driving furiously causing bodily harm
  • Appeal otherwise dismissed

Key Takeaways

  • Judicial error on sentence cannot be established by importing remarks made during a hearing exchange into the written judgment on sentence. The Court of Criminal Appeal confirmed this course is warranted only in narrow circumstances, such as where a brief ex tempore judgment plainly relies on an understanding formed during submissions immediately preceding it (at [19]-[20]).

  • The Whyte guideline for dangerous driving occasioning death sets a floor for sentencing, not a ceiling. Imposing a sentence above the guideline minimum does not, by itself, demonstrate error in the application of the guideline (at [82]).

  • Under the De Simoni principle, a sentencing court cannot treat as aggravating a circumstance that could have founded a distinct charge. Where the applicant's blood alcohol concentration fell below the statutory threshold defining the aggravated offence under s 52A(7) of the Crimes Act (0.15g per 100mL), no De Simoni issue arose (at [29]-[30]).

  • Clerical errors in court records that do not reflect the orders actually pronounced in open court require correction. The Court found that a direction purporting to release an offender on parole on a fixed date, which was never made as an order and contradicted what the judge told the offender in court, was an improper addition to the record (at [7], [10]).

  • In dismissing the manifest excess ground, the Court confirmed that where a sentencing judge has expressly considered substantial subjective mitigating factors and weighed them through instinctive synthesis against objective seriousness and the need for general deterrence, an appellate court will not readily intervene merely because comparable cases involved different sentencing outcomes (at [102], [115]-[116]).

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), ss 52A, 53
- Crimes (Administration of Sentences) Act 1999 (NSW), ss 126, 158; Div 2
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 42A, 50
- Parole Legislation Amendment Act 2017 (NSW), Sch 3.2[1]

Cases
- Aitken v R [2014] NSWCCA 201
- Director of Public Prosecutions (Cth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194
- Hili v The Queen (2010) 242 CLR 520; [2010] HCA 45
- Hughes v R [2018] NSWCCA 2
- Hughes v The Queen [2008] NSWCCA 48; 185 A Crim R 155
- Legge v R [2007] NSWCCA 244
- Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25
- R v De Simoni (1981) 147 CLR 383; [1981] HCA 31
- R v Karacic [2001] NSWCCA 12; 121 A Crim R 7
- R v Kennedy [2000] NSWCCA 527
- R v Nguyen [2008] NSWCCA 113
- R v Pham (2015) 256 CLR 550; [2015] HCA 39
- R v Van Hong Pham [2005] NSWCCA 94
- R v Whyte (2002) 55 NSWLR 252; [2002] NSWCCA 343
- Wong v The Queen (2001) 207 CLR 584; [2001] HCA 64
- Woodward v R [2014] NSWCCA 205