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Court of Criminal Appeal 20 October 2004

Regina v Gardiner [2004] NSWCCA 365 revised - 22

[2004] NSWCCA 365

DrugsTraffic & driving
JURISIC AND WHYTE NOT EXHAUSTIVE 4 YEARS WITH 2 1 2 YEARS NON PAROLE PERIOD NOT EXCESSIVE

Citation: Regina v Gardiner [2004] NSWCCA 365
Court: NSW Court of Criminal Appeal
Date: 20 October 2004
Judge(s): Spigelman CJ, Grove J, Smart AJ

Background

The applicant was the driver of a prime mover and trailer travelling north on the Hume Highway near Pheasant's Nest. After overtaking another heavy vehicle and moving back into the left lane, the applicant's bull bar collided with the rear of a Land Rover utility travelling in the same lane. The force of the impact forced the utility off the highway, and its driver, David Riley, was killed.

A blood sample taken from the applicant approximately one hour after the collision revealed a methamphetamine concentration of 0.11 milligrams per litre, approximately double a normal therapeutic dose. The jury convicted the applicant of driving whilst under the influence of a drug causing death under section 52A(1)(a) of the Crimes Act 1900, which carries a maximum penalty of 10 years imprisonment.

The District Court sentenced the applicant to 4 years imprisonment with a non-parole period of 2 years and 6 months. The applicant sought leave to appeal against that sentence in the Court of Criminal Appeal, arguing that the sentencing judge had wrongly assessed moral culpability as high and that the sentence was manifestly excessive.

  • Whether the sentencing judge erred in concluding that the applicant's moral culpability was high, given the contested expert evidence about the effect of methamphetamine on driving ability
  • Whether a sentence of 4 years with a non-parole period of 2 years and 6 months was manifestly excessive for this offence
  • Whether the sentencing judge had inappropriately applied the guidelines from R v Jurisic and R v Whyte in a formulaic or restrictive way

Decision

The Court of Criminal Appeal rejected both grounds of appeal. On the question of moral culpability, Smart AJ (with whom Spigelman CJ and Grove J agreed) held that a sentencing court must consider the combination of all relevant circumstances, not any single factor in isolation. It is an error to take a restrictive view of what circumstances may contribute to a finding of high moral culpability.

On the expert evidence, the Court noted that while the two expert witnesses disagreed on certain points, the Crown's expert, Dr Perl, gave evidence that the methamphetamine concentration combined with observed symptoms of stimulation would have impaired the applicant's driving ability. The jury's verdict established beyond reasonable doubt that the applicant was under the influence of methamphetamine at the time of the collision. Those findings, together with the undisputed facts, were sufficient to support the sentencing judge's conclusion of high moral culpability.

On the question of manifest excess, the Court acknowledged that the applicant had compelling subjective features, including genuine remorse, good character, a history of hard work and family support, no major traffic convictions, and health difficulties. However, the Court held that compelling personal circumstances cannot produce a sentence that fails to adequately reflect the objective seriousness of the offence. General deterrence was identified as an important sentencing consideration for drivers of heavy vehicles who take unprescribed drugs.

The Court also rejected the submission that the sentencing judge had simply adjusted the Jurisic and Whyte guidelines to account for the absence of a guilty plea, finding no basis for that characterisation of the judge's approach.

Orders Made

  • Leave to appeal against sentence granted
  • Appeal against sentence dismissed

Key Takeaways

  • In assessing moral culpability for drug-impaired driving causing death, a sentencing court must consider the combination of all relevant circumstances. No single factor is determinative, and a restrictive approach to what circumstances are relevant is an error of principle.
  • The guideline decisions in R v Jurisic and R v Whyte are not exhaustive of the sentencing considerations applicable to dangerous or drug-impaired driving causing death.
  • A conviction under section 52A(1)(a) of the Crimes Act 1900 does not require proof that the drug was the sole or dominant cause of the collision; a jury finding that the driver was under the influence of the drug at the time of impact can support a finding of high moral culpability when considered alongside all other circumstances.
  • Compelling subjective features, including genuine remorse, good character, and low risk of reoffending, cannot reduce a sentence to a level that fails to adequately reflect the objective criminality of the offence.
  • In dismissing the appeal, the Court affirmed that a 4-year term with a 2.5-year non-parole period was not manifestly excessive where a heavy vehicle driver caused death while under the influence of methamphetamine at approximately double a normal therapeutic dose.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), s 52A(1)(a)

Cases
- R v Jurisic (1998) 45 NSWLR 209
- R v Whyte [2003] NSWCCA 343