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Court of Criminal Appeal 28 November 2000

R v Romanic [2000] NSWCCA 524 revised - 14

[2000] NSWCCA 524

Traffic & drivingDomestic & family violence

Citation: R v Romanic [2000] NSWCCA 524
Court: NSW Court of Criminal Appeal
Date: 28 November 2000
Judge(s): Wood CJ at CL, Dunford J, Carruthers AJ

Background

The respondent pleaded guilty in the District Court to dangerous driving occasioning grievous bodily harm, following a collision on Elizabeth Drive, Bonnyrigg in July 1998. His vehicle crossed to the wrong side of the road and struck an oncoming car, seriously injuring two adult occupants. A blood alcohol reading taken approximately two hours after the incident recorded 0.241 grams per 100 millilitres, and expert evidence placed his blood alcohol level at the time of driving between 0.116 and 0.297 grams per 100 millilitres. The sentencing judge found the respondent's level of intoxication was such that he had abandoned responsibility for his conduct.

At first instance, District Court Judge Sorby sentenced the respondent to 22 months' imprisonment with a non-parole period of 18 months, to be served by way of periodic detention. The Director of Public Prosecutions brought a Crown appeal under section 5D of the Criminal Appeal Act 1912, contending the sentence was manifestly inadequate.

  • Whether the sentencing judge failed to give adequate weight to general deterrence
  • Whether excessive weight was given to the respondent's subjective circumstances
  • Whether the discount for the plea of guilty was applied correctly, resulting in a double discount when considered alongside the Jurisic guideline
  • Whether the finding of special circumstances was justified, and whether it was reflected correctly in the arithmetic of the sentence
  • Whether the sentence of periodic detention was appropriate in light of the guideline judgment in R v Jurisic (1998) 45 NSWLR 209

Decision

The Court of Criminal Appeal allowed the Crown appeal and quashed the sentence below. Wood CJ at CL, with whom Dunford J and Carruthers AJ agreed, found that the sentencing judge had not given proper effect to the Jurisic guideline, which established that where an aggravating factor is present to a material degree, a custodial sentence of less than two years for dangerous driving causing grievous bodily harm should be exceptional. The finding that the respondent had abandoned responsibility for his conduct engaged that guideline directly, and periodic detention did not satisfy its requirements.

The Court also identified two arithmetic errors in the sentencing reasons. First, the non-parole period of 18 months represented 82 per cent of the 22-month head sentence, which was inconsistent with the finding of special circumstances that would ordinarily reduce the proportion below the standard 75 per cent. Second, the 25 per cent discount applied for the guilty plea amounted to a double discount: the Jurisic guideline already assumed a plea of guilty when prescribing its two-year threshold.

A further error concerned the finding of special circumstances itself. The sentencing judge had expressed the view that supervision by Probation and Parole was unnecessary, yet nonetheless found special circumstances. The Court found this combination was internally inconsistent and could not be justified.

In re-sentencing, the Court took into account the respondent's age, the principle of double jeopardy applicable to Crown appeals, and the three months of periodic detention already served. A sentence of 12 months' imprisonment with a non-parole period of nine months was imposed, to run from the date of the appeal.

Orders Made

  • Appeal allowed
  • Sentence imposed by the District Court quashed
  • Respondent sentenced to 12 months' imprisonment, commencing 28 November 2000, with a non-parole period of nine months, expiring 27 August 2001
  • Release of the respondent directed at the expiration of the non-parole period

Key Takeaways

  • The Jurisic guideline establishes that a custodial sentence of less than two years for dangerous driving causing grievous bodily harm (with a plea of guilty) should be exceptional wherever an aggravating factor, such as significant intoxication, is present to a material degree.
  • Periodic detention does not satisfy the custodial sentence requirement contemplated by the Jurisic guideline where the offender has been found to have abandoned responsibility for their conduct.
  • Where a sentencing judge applies a separate discount for a plea of guilty on top of the Jurisic starting point, this produces a double discount, because the guideline itself already assumes a guilty plea.
  • A finding of special circumstances that is inconsistent with the sentencing judge's own view that parole supervision is unnecessary, and that is not reflected accurately in the arithmetic of the non-parole period, constitutes a further error on the face of the reasons.
  • In re-sentencing following a successful Crown appeal, the Court of Criminal Appeal applied the double jeopardy principle by imposing a sentence below what the guideline might otherwise have suggested, reflecting the additional burden placed on a respondent who faces a second sentencing exercise.

Legislation and Cases Referenced

Legislation
- Criminal Appeal Act 1912 (NSW), s 5D (Crown appeal against sentence)
- Crimes Act 1900 (NSW), s 52A(3)(a) (dangerous driving occasioning grievous bodily harm, maximum seven years' imprisonment)
- Crimes Act 1900 (NSW), s 52A(4) (aggravated dangerous driving occasioning grievous bodily harm)
- Crimes Act 1900 (NSW), s 52AA(3) (blood alcohol evidentiary provisions)

Cases
- R v Jurisic (1998) 45 NSWLR 209 (guideline judgment on sentencing for dangerous driving offences)
- R v Thomson (2000) NSW CCA 309 (guideline judgment on discount for guilty plea)
- R v Lett NSW CCA, 27 March 1995 (special circumstances and non-parole periods)