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Court of Criminal Appeal 24 July 2024

Rigby v R

[2024] NSWCCA 134

Traffic & driving

Citation: Rigby v R [2024] NSWCCA 134
Court: NSW Court of Criminal Appeal
Date: 24 July 2024
Judge(s): Adamson JA (leading judgment), Wilson J, Dhanji J

Background

The applicant drove approximately 50 kilometres from Nambucca Heads to Coffs Harbour on the afternoon of 4 September 2020, where she spent several hours drinking wine at a hotel before getting into her car and heading home along the Pacific Highway. While travelling at 90 km/h, she attempted to overtake a vehicle and made contact with it, sending her car spinning across the median strip and into the path of an oncoming vehicle driven by Lynette Jervis. A blood alcohol reading taken around 7:30 pm recorded a concentration of 0.208g/100ml, more than four times the legal limit.

Ms Jervis sustained a fractured sternum, vertebrae and ribs, a subdural haematoma (bleeding between the brain and skull), thoracic trauma, and various bruises and lacerations. She was hospitalised but died as a result of negligent medical treatment received there. Following a two-year investigation, the applicant pleaded guilty to one count of aggravated dangerous driving occasioning grievous bodily harm under s 52A(4) of the Crimes Act 1900 (NSW), which the Crown accepted in lieu of the original charge of aggravated dangerous driving causing death.

On 13 November 2023, Conlon SC ADCJ sentenced the applicant to 2 years and 6 months imprisonment, with a non-parole period of 1 year and 2 months, finding special circumstances. The applicant sought leave to appeal, arguing the sentencing judge had made errors in assessing both the objective seriousness of the offence and her subjective circumstances.

  • Whether the sentencing judge erred in assessing objective seriousness, specifically by including a factual error (that surgery was required to treat the victim's injuries, when this could not be established) and by failing to address all factors identified in the guideline judgments in R v Jurisic and R v Whyte
  • Whether the sentencing judge erred in assessing the applicant's subjective circumstances by failing to address the relevance of her prior offending history, her submission that injuries she sustained in the crash amounted to extra-curial punishment, and the relevance of her history of domestic abuse and use of alcohol to self-medicate

Decision

Ground 1: Objective seriousness

The Court of Criminal Appeal granted leave to appeal but found no error in the sentencing judge's assessment of objective seriousness. While the sentencing judge did erroneously refer to the victim as having required surgical intervention, the Court held this factual error was slight and immaterial. Because the victim's injuries had already been accepted by both parties as constituting grievous bodily harm, whether surgery was or was not required added nothing to the assessment of the gravity of those injuries. The sentencing judge's conclusion that the offending was at least mid-range in seriousness rested on multiple factors: the applicant's very high intoxication, her inability to control her vehicle, the speed at which she was travelling, the busyness of the highway, and the length of time she had been driving while heavily intoxicated. Those factors collectively supported a finding of high moral culpability and an objective abandonment of responsibility.

On the question of the guideline judgments, the Court confirmed that s 37A of the Crimes (Sentencing Procedure) Act 1999 (NSW) does not require a sentencing judge to address every factor mentioned in a guideline judgment if those factors are not relevant to the case at hand. The applicant did not present the profile of the typical offender envisaged by Whyte and Jurisic, and the sentencing judge was not obliged to work through the guideline factors item by item.

Ground 2: Subjective circumstances

The Court rejected each limb of the second ground. The sentencing judge acknowledged the applicant's prior offending and identified specific deterrence as a significant consideration, which was sufficient in the circumstances. On the question of extra-curial punishment, the Court noted that the submission had not been developed in detail below and had not been explicitly framed as a submission that the applicant's injuries constituted extra-curial punishment. Dhanji J, in a brief concurrence, accepted that the submission was most naturally read as referring to the applicant's injuries, but found no error because the sentencing judge had referred to those injuries in his reasons and they could be taken to have formed part of the overall sentencing synthesis. The Court further found that the sentencing judge plainly took the applicant's history of domestic abuse into account, and that he was prohibited by s 21A(5AA) of the Crimes (Sentencing Procedure) Act from treating the applicant's self-induced intoxication as a mitigating factor.

Orders Made

  • Leave to appeal granted
  • Appeal dismissed

Key Takeaways

  • A factual error in a sentencing judgment will not vitiate the sentence unless it is material to the outcome. Where injuries had already been accepted as meeting the threshold of grievous bodily harm, an incorrect reference to surgical intervention added nothing to the objective seriousness analysis and was therefore immaterial.

  • Under s 37A of the Crimes (Sentencing Procedure) Act 1999 (NSW), sentencing judges are not required to mechanically work through every factor listed in a guideline judgment. The obligation to have regard to a guideline judgment does not extend to addressing factors that are simply not relevant to the offender before the court.

  • Where a sentencing submission is not developed in detail or given particular emphasis in the court below, the appellate court will not readily infer that the sentencing judge failed to take the underlying matter into account, particularly where the judge's reasons show awareness of the relevant facts.

  • Section 21A(5AA) of the Crimes (Sentencing Procedure) Act prohibits a sentencing court from treating self-induced intoxication as a mitigating factor, even where the offender's background suggests alcohol was used to self-medicate.

  • In dismissing the appeal, the Court of Criminal Appeal confirmed that a sentencing judge's explicit identification of specific deterrence as a significant factor, in light of the applicant's prior offending, was sufficient engagement with the criminal history without requiring further elaboration.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), s 52A
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 21A, 37A, 68
- Criminal Procedure Act 1986 (NSW), s 267
- Road Transport Act 2013 (NSW), s 205

Cases
- R v Jurisic (1998) 45 NSWLR 209
- R v Whyte (2002) 55 NSWLR 252; [2002] NSWCCA 343
- Kendall v R [2015] NSWCCA 13
- Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37
- House v The King (1936) 55 CLR 499; [1936] HCA 40
- Stanley v Director of Public Prosecutions (NSW) [2023] HCA 3; (2023) 299 A Crim R 391
- Braithwaite v R [2024] NSWCCA 15
- Salama v R [2023] NSWCCA 141
- JG v R [2023] NSWCCA 33
- DH v R [2022] NSWCCA 200
- Zreika v R [2012] NSWCCA 44; (2012) 223 A Crim R 460
- Hordern v R [2019] NSWCCA 138; (2019) 278 A Crim R 353
- The Queen v Olbrich (1999) 199 CLR 270; [1999] HCA 54
- Weininger v The Queen (2003) 212 CLR 629; [2003] HCA 14
- Mulato v R [2006] NSWCCA 282
- R v Doyle [2006] NSWCCA 118
- *R v El Mas