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Court of Criminal Appeal 29 June 2001

R v Kaliti [2001] NSWCCA 268 revised - 25

[2001] NSWCCA 268

Traffic & driving
CRIMINAL LAW APPEALS APPEAL AGAINST SENTENCE PAROLE PERIOD AND TERM OF SENTENCE

Citation: R v Kaliti [2001] NSWCCA 268
Court: New South Wales Court of Criminal Appeal
Date: 29 June 2001
Judge(s): Wood CJ at CL; Howie J

Background

The applicant pleaded guilty to dangerous driving causing grievous bodily harm in circumstances of aggravation, contrary to s 52A(4) of the Crimes Act 1900. The aggravating circumstance was that he was driving with a blood alcohol reading of 0.2 grams per 100 millilitres, four times the prescribed limit. He had known he was over the limit but chose to drive regardless.

The victim suffered devastating injuries as a result of the collision, including traumatic amputation of one leg, surgical amputation of the other, and brain damage. The applicant was sentenced by Kirkham DCJ in the District Court to five years imprisonment, with a non-parole period of three years and nine months.

The applicant did not challenge the five-year head sentence. His appeal to the Court of Criminal Appeal focused solely on whether special circumstances existed to justify departing from the statutory ratio between the non-parole period and the total sentence under s 44(2) of the Crimes (Sentencing Procedure) Act 1999.

  • Whether the sentencing judge erred by failing to expressly address the question of special circumstances under s 44(2) of the Crimes (Sentencing Procedure) Act 1999
  • Whether the applicant's age (30 at the time of the offence), prior good character, clear driving record, and the fact that this was his first custodial experience constituted special circumstances
  • Whether an alleged history of alcohol abuse, linked to grief following the death of his parents, and a psychologist's recommendation for counselling, amounted to special circumstances warranting a reduced non-parole period

Decision

The Court granted leave to appeal, noting that the sentencing judge had made no express reference to s 44(2). Although the Court accepted that a failure to mention the provision does not automatically establish appealable error, it reaffirmed the desirability of sentencing judges expressly addressing the issue. The Court then proceeded to consider whether special circumstances were made out.

On the question of age, prior good character, and first-time custody, Wood CJ at CL expressed doubt, consistent with earlier authority, that these factors alone constitute special circumstances. The Court acknowledged that such matters may, in conjunction with other subjective circumstances, support a finding that an offender needs an extended supervised release period, but cautioned against automatically treating ordinary subjective factors as special circumstances when fixing a sentence.

The Court also rejected the submission that the applicant's alcohol problems and psychological needs justified a longer parole period. The evidence did not establish that he had a serious alcohol dependency. His employer and partner were unaware of any drinking problem, and the applicant himself did not accept that his drinking was problematic. The psychologist's report was characterised as vague and insufficient to ground a finding of special circumstances.

Howie J added that any reduction in the non-parole period must be purposeful. The purpose of extending parole must be something more than simply reducing the minimum time actually served. In his Honour's view, no identifiable purpose would be served by a longer parole period in this case.

Orders Made

  • Leave to appeal granted
  • Appeal dismissed

Key Takeaways

  • Age, prior good character, a clear criminal record, and the fact that a sentence represents an offender's first period of custody are not, of themselves, special circumstances within the meaning of s 44(2) of the Crimes (Sentencing Procedure) Act 1999.
  • Where an alcohol, drug, or psychiatric problem is advanced as a basis for special circumstances, the evidence must establish a genuine and identifiable need for assistance that either cannot adequately be provided within the custodial setting or requires an extended period of supervised release.
  • A vague or inconclusive psychological report will not satisfy the threshold for special circumstances, particularly where other evidence contradicts the existence or severity of the underlying problem.
  • Howie J confirmed that a reduction in the non-parole period must serve a discernible purpose beyond simply reducing the minimum sentence an offender is required to serve.
  • Sentencing courts are strongly encouraged to expressly address the question of special circumstances under s 44(2), even where the ratio ultimately fixed accords with the statutory default.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), s 52A(4)
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 44(2)

Cases:
- R v Jurisic (1998) 45 NSWLR 209
- Mason [2000] NSWCCA 207
- McIntyre, NSWCCA, 18 April 1995
- McIntyre (1988) 38 A Crim R 135
- Brindley (1993) 66 A Crim R 204
- Jenkins (1999) NSWCCA 110
- Bloomfield, NSWCCA, 15 July 1998
- Moffitt (1990) 20 NSWLR 114
- Morrissey, NSWCCA, 15 July 1994
- Lett, NSWCCA, 27 March 1995
- Silver (1999) NSWCCA 108
- Kama (2000) NSWCCA 23