AI-generated summaries. Not legal advice. Always verify against the official judgment on NSW Caselaw.
← All decisions
1
Court of Criminal Appeal 1 April 2022

Pearce v R

[2022] NSWCCA 68

Traffic & driving

Citation: Pearce v R [2022] NSWCCA 68
Court: Court of Criminal Appeal
Date: 1 April 2022
Judges: Beech-Jones CJ at CL; Harrison J; Fagan J

Background

The applicant pleaded guilty to aggravated dangerous driving causing grievous bodily harm under s 52A(4) of the Crimes Act 1900 (NSW). The offence occurred in the early hours of 8 April 2016, when the applicant drove a vehicle at speeds estimated between 202 and 220 km/h on a road with an 80 km/h limit, carrying an unrestrained front-seat passenger. The vehicle lost control on a bend, struck a light pole, and rolled repeatedly into a paddock. The passenger was ejected from the vehicle and suffered severe diffuse axonal brain injury, along with fractures to his pelvis, ribs and nose, and internal injuries.

The applicant was 23 years old at the time. He told his psychologist he had recently purchased the car and wanted to see how it performed at speed. The District Court sentenced him in March 2017 to six years' imprisonment with a non-parole period of three years and nine months. The court also took into account, on a Form 1, possession of 70 Diazepam tablets found in the vehicle.

The applicant sought leave to appeal out of time, challenging the sentencing judge's assessment of the offence's objective seriousness, the findings made about the victim's injuries, and the overall sentence including the driving disqualification period.

  • Whether the sentencing judge erred in assessing the objective seriousness of the offence
  • Whether the sentencing judge made findings about the victim's injuries that were not open on the evidence
  • Whether the sentence, including the driving disqualification period, was manifestly excessive having regard to the applicant's rehabilitation and prospects of reoffending
  • Whether the sentencing judge failed to exercise the discretion under s 205(3)(d)(ii) of the Road Transport Act 2013 (NSW) to vary the automatic five-year disqualification period

Decision

The Court of Criminal Appeal found no error in the sentencing judge's assessment of objective seriousness. The combination of speed exceeding the limit by between 115 and 140 km/h, and driving with an unrestrained passenger, supported a finding that moral culpability was very high and that the offending sat well above the mid-range. The court accepted the sentencing judge's characterisation without identifying any error of principle.

The challenge to the findings about the victim's injuries also failed. While the evidence before the sentencing judge was described as limited, the court found no error in the conclusions drawn from that evidence. The term of imprisonment was not manifestly excessive in the circumstances.

However, the court found that the sentencing judge had erred by failing to consider whether to exercise the discretion under s 205(3)(d)(ii) of the Road Transport Act 2013 to reduce or increase the automatic five-year disqualification period. The automatic period applied from the applicant's release to parole on 23 December 2020, and the sentencing judge made no order one way or the other. This constituted a failure to exercise jurisdiction.

In re-exercising the discretion, the court took into account the applicant's significant progress toward rehabilitation since release, his maturation, his willingness to pursue productive employment, and the risk that a prolonged disqualification could frustrate his reintegration and create conditions for reoffending. The court reduced the disqualification to one year and four months from the date of parole release, expiring on 22 April 2022, which satisfied the statutory minimum of two years when taken together with an earlier licence suspension.

Orders Made

  • Extension of time for filing the application for leave to appeal granted
  • Leave to appeal granted
  • In lieu of the automatic disqualification under s 205(2)(d)(i) of the Road Transport Act 2013 (NSW), disqualification ordered for one year and four months commencing 23 December 2020 and expiring 22 April 2022, pursuant to s 205(2)(d)(ii)
  • Appeal otherwise dismissed

Key Takeaways

  • A sentencing judge's failure to consider exercising the discretion under s 205(3)(d)(ii) of the Road Transport Act 2013 to vary an automatic disqualification period constitutes a failure to exercise jurisdiction, and is a ground of appeal.
  • In dismissing most of the appeal, the Court of Criminal Appeal confirmed that extreme excess speed combined with carrying an unrestrained passenger can justify placing an aggravated dangerous driving offence well above the mid-range of objective seriousness.
  • Under s 205(3)(d)(ii), the sentencing court has power to reduce the automatic five-year disqualification period, subject to the statutory minimum of two years as prescribed by s 206B(4) of the Road Transport Act 2013.
  • Post-sentence rehabilitation and the practical impact of a licence disqualification on an offender's reintegration are relevant considerations when the court exercises its discretion to vary the automatic disqualification period.
  • The Court of Criminal Appeal treated the sentencing error as confined to the disqualification issue: correcting that error did not, on the facts, warrant any reduction in the imprisonment term already imposed.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), s 52A(4) and s 52A(7)
- Road Transport Act 2013 (NSW), ss 205(2)(d)(i), 205(2)(d)(ii), 205(3)(d)(ii), 206B(4)
- Poisons and Therapeutic Goods Act 1966 (NSW), s 16

Cases
- Application by the Attorney General (No. 3 of 2002) [2004] NSWCCA 303
- Brooks v R [2009] NSWCCA 265
- Daniels v R [2016] NSWCCA 35
- Dinsdale v The Queen (2000) 202 CLR 321; [2000] HCA 54
- Elyard v R [2006] NSWCCA 43
- Lawson v R [2018] NSWCCA 215
- Lehn v R (2016) 93 NSWLR 205; [2016] NSWCCA 255
- McGonigle v R [2020] NSWCCA 84
- Obeid v R (2017) 96 NSWLR 155; [2017] NSWCCA 221
- Priovolidis v R [2016] NSWCCA 201
- R v Daetz; R v Wilson [2003] NSWCCA 216; (2003) 139 A Crim R 398
- R v Jurisic (1998) 45 NSWLR 209
- R v Tuhakaraina [2016] NSWCCA 81
- R v Whyte (2002) 55 NSWLR 252; [2002] NSWCCA 343
- Reddy v R [2018] NSWCCA 212
- Ul-Hassan v R [2018] NSWCCA 177