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Court of Criminal Appeal 30 June 2021

R v Bortic

[2021] NSWCCA 138

HomicideTraffic & driving
CRIMINAL LAW CROWN SENTENCE APPEAL SPEED AND ALCOHOL HIGH LEVEL OF MORAL CULPABILITY ERROR DEMONSTRATED NON

Citation: R v Bortic [2021] NSWCCA 138
Court: NSW Court of Criminal Appeal
Date: 30 June 2021
Judges: Hoeben CJ at CL; Bellew J; Hidden AJ

Background

The respondent pleaded guilty to two counts of aggravated dangerous driving occasioning death and one count of causing bodily harm by misconduct in charge of a motor vehicle. The offences arose from a single crash in April 2018 at Salamander Bay, NSW, when the respondent drove three work colleagues home from a tavern late at night.

The respondent had a blood alcohol reading of at least 0.183 and was travelling in excess of 45 km/h above the 50 km/h speed limit. Airbag data showed his vehicle reached speeds of up to 136 km/h in the five seconds before impact. After missing the turn to his accommodation and being signalled to slow down by a following vehicle, he accelerated further. His car failed to negotiate a bend and struck a tree. Two passengers died. A third sustained grievous bodily harm.

In October 2020, the District Court at Newcastle imposed an aggregate sentence of six years imprisonment with a non-parole period of two years and nine months, representing 46 per cent of the head sentence. The Crown appealed, contending that the sentencing judge had assessed objective seriousness too low and that both the head sentence and the non-parole period were manifestly inadequate.

  • Whether the sentencing judge erred in characterising the offending as falling at the mid-range of objective seriousness.
  • Whether the aggregate head sentence of six years was manifestly inadequate.
  • Whether the aggregate non-parole period of two years and nine months was manifestly inadequate.

Decision

The Court of Criminal Appeal upheld all three grounds of appeal, though Hidden AJ found it unnecessary to resolve Ground 1 and declined to express a concluded view on the concept of "abandonment of moral responsibility" as a sentencing consideration.

On the question of objective seriousness, Hoeben CJ at CL and Bellew J held that the offending fell above the mid-range. The respondent drove at extreme speed, with a high-range blood alcohol level, at night, carrying three passengers who placed their trust in him. He drove past his turn-off, accelerated away when signalled by the following vehicle, and showed no attempt to slow down before the collision. The combination of those factors placed the conduct well beyond mid-range.

On manifest inadequacy, the Court found that neither the head sentence nor the non-parole period adequately reflected the gravity of offending that killed two people. A non-parole period of less than three years for conduct of this kind failed to serve general deterrence and was inconsistent with the weight of the applicable sentencing principles. While the Court accepted that special circumstances existed (based on psychological evidence suggesting rehabilitation was more likely in the community), that finding could not justify the extent of the departure from the statutory non-parole period ratio.

The Court re-sentenced the respondent to an aggregate term of eight years, with a non-parole period of four years and nine months. The indicative sentences for each death count were increased from five and a half years to six years.

Orders Made

  • The sentence imposed in the District Court was set aside.
  • The respondent is sentenced to an aggregate term of imprisonment of eight years, commencing 7 October 2020 and expiring 6 October 2028.
  • The non-parole period is four years and nine months, commencing 7 October 2020 and expiring 6 July 2025.
  • Indicative sentence for Count 1 (aggravated dangerous driving occasioning death): six years.
  • Indicative sentence for Count 2 (aggravated dangerous driving occasioning death): six years.
  • Indicative sentence for Count 3 (causing bodily harm by misconduct): nine months.
  • Global disqualification from driving of four years imposed in relation to the three indictment counts.
  • Disqualification from driving of six months imposed in relation to the section 166 certificate matter.

Key Takeaways

  • The Court of Criminal Appeal confirmed that high-range alcohol intoxication combined with grossly excessive speed, multiple fatalities, and aggravating conduct after being warned to slow down placed this offending above mid-range objective seriousness for the purposes of sentencing under section 52A(2) of the Crimes Act 1900 (NSW).
  • A finding of special circumstances does not operate to reduce a non-parole period to a level that fails to reflect the gravity of the underlying offending or to serve the purpose of general deterrence.
  • Hidden AJ declined to determine whether "abandonment of moral responsibility" forms a discrete sentencing concept, leaving that question open for future consideration.
  • The aggregate non-parole period was nearly doubled on appeal, from two years and nine months to four years and nine months, underscoring the Court's assessment of how far the original sentence departed from an appropriate outcome.
  • Crown appeals against sentence under section 5D of the Criminal Appeal Act 1912 (NSW) remain an available mechanism where both the head sentence and the non-parole period are found to be manifestly inadequate.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 52A(2), 53
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 10A, 166
- Criminal Appeal Act 1912 (NSW), s 5D
- Road Transport Act 2013 (NSW), s 111(1)(a)

Cases:
- Bugmy v The Queen (2013) 249 CLR 571
- Casey v R (2015) 71 MVR 191; [2015] NSWCCA 142
- CMB v The Attorney General for New South Wales (2015) 256 CLR 346
- Collier v R [2012] NSWCCA 213
- Conte v R (2018) 86 MVR 239; [2018] NSWCCA 209
- Dinsdale v The Queen (2000) 202 CLR 321
- Everett v The Queen (1994) 181 CLR 295
- FL v R [2020] NSWCCA 114
- Goodbun v R [2020] NSWCCA 77
- Green v The Queen; Quinn v The Queen (2011) 244 CLR 462
- Hili v The Queen; Jones v The Queen (2010) 242 CLR 520
- House v The King (1936) 55 CLR 499
- Khoury v R (2011) 209 A Crim R 509; [2011] NSWCCA 118
- Lehn v R (2016) 78 MVR 353; [2016] NSWCCA 255
- Lowndes v The Queen (1999) 195 CLR 665
- Markarian v The Queen (2005) 228 CLR 357
- Moodie v R (2020) 93 MVR 197; [2020] NSWCCA 160
- Mulato v Regina [2006] NSWCCA 282
- Muldrock v The Queen (2011) 244 CLR 120
- Norouzi v R [2020] NSWCCA 237