Citation: Regina v Howland [1999] NSWCCA 10; (1999) 104 A Crim R 273
Court: NSW Court of Criminal Appeal
Date: 24 February 1999
Judge(s): Spigelman CJ, Wood CJ at CL, McInerney J
Background
The respondent was convicted by a jury of dangerous driving occasioning death under s 52A(1) of the Crimes Act 1900 (NSW), carrying a maximum penalty of ten years imprisonment. The offence arose from an incident in March 1997 at a signalised intersection in Wallsend, where the respondent drove a tipper truck around a stationary vehicle and through a red light, colliding with a motorcyclist who had lawfully entered the intersection on a green light. The motorcyclist died as a result.
The sentencing judge in the District Court rejected the respondent's account that he had been forced into the intersection by sudden braking from the vehicle ahead. The judge found the deceased bore no fault and that the vehicle ahead had stopped normally. The respondent had no criminal history and references were tendered attesting to his remorse and good character.
The District Court sentenced the respondent to eighteen months of periodic detention (a form of part-time custody served on weekends) and disqualified him from holding a driver's licence for three years. The Crown appealed, contending the sentence was manifestly inadequate.
Legal Issues
- Whether the sentencing judge gave adequate weight to the objective seriousness of the offence under s 52A(1)(c) of the Crimes Act 1900.
- Whether the sentencing judge adequately considered the need for general deterrence.
- Whether the respondent's conduct amounted to a "momentary inattention or misjudgment," potentially warranting a more lenient approach.
- Whether the sentencing guidelines set out in R v Jurisic applied, and if so, which guideline was appropriate.
- What adjustments, if any, the double jeopardy principle warranted when re-sentencing on a Crown appeal.
- Whether "special circumstances" existed under s 5(3) of the Sentencing Act 1989 to justify an additional term exceeding one-third of the total sentence.
Decision
The Court of Criminal Appeal upheld the Crown appeal, finding that the sentencing judge had erred in two fundamental respects. First, insufficient weight was given to the objective seriousness of the offence, as reflected in its ten-year maximum penalty. Second, the need to deter others from similar conduct was not adequately considered. These errors, taken together, rendered the periodic detention sentence inadequate.
The Court rejected the characterisation of the respondent's conduct as momentary inattention or misjudgment. The respondent had made a deliberate decision to drive around a stationary vehicle and proceed through a red light. That amounted to a calculated risk, not a fleeting lapse in concentration.
The Court also considered whether the second guideline from R v Jurisic (relating to conduct indicating an abandonment of responsibility) was appropriate. It concluded that this guideline did not apply on the facts. The conduct, while serious, did not rise to that higher level of culpability identified in Jurisic.
On re-sentencing, the Court applied the double jeopardy principle, which calls for the imposition of the least sentence that could properly have been imposed at first instance rather than the sentence the appellate court would itself have imposed afresh. Taking into account the respondent's personal circumstances, the genuine remorse expressed, and the double jeopardy element, the Court substituted a sentence of eighteen months imprisonment, structured as an equal split of nine months minimum term and nine months additional term. The equal split was justified by special circumstances under s 5(3) of the Sentencing Act 1989. The licence disqualification was affirmed.
Orders Made
- The Crown appeal against the sentence is upheld.
- The sentence of periodic detention imposed by Job DCJ is quashed.
- The sentence of disqualification from holding a driver's licence for three years is affirmed.
- The respondent is sentenced to eighteen months imprisonment, comprising a minimum term of nine months commencing 22 August 1998 and expiring 21 May 1999, with release on parole on that date, and an additional term of nine months commencing 22 May 1999.
Key Takeaways
- Under s 52A(1)(c) of the Crimes Act 1900, "driving in a manner dangerous" is a distinct alternative to excessive speed and alcohol or drug-related driving. The absence of those aggravating features does not reduce the objective seriousness of the offence; the focus must remain on the nature of the dangerous driving itself.
- Deliberate conduct involving a calculated risk at a red light is not properly characterised as momentary inattention or misjudgment, even where the incident was brief and isolated.
- The Jurisic guideline relating to an abandonment of responsibility does not automatically apply to all offences under s 52A. Its application depends on the specific nature of the conduct involved.
- On a Crown appeal, the double jeopardy principle limits re-sentencing to the least sentence that could properly have been imposed at first instance, meaning the substituted sentence will typically be lower than what the appellate court might otherwise have imposed.
- Special circumstances under s 5(3) of the Sentencing Act 1989 can be established by a combination of the offender's personal circumstances and the double jeopardy element inherent in Crown appeals, justifying an additional term exceeding one-third of the total sentence.
Legislation and Cases Referenced
Legislation
- Crimes Act 1900 (NSW), s 52A(1)(c)
- Sentencing Act 1989 (NSW), s 5(3)
Cases
- R v Jurisic, NSWCCA, 12 October 1998 (first sentencing guideline judgment for s 52A offences)
- R v Musumeci, NSWCCA, 30 October 1997
- Rose, NSWCCA, 22 May 1996 (double jeopardy principle on Crown appeals)
- R v Coventry (1939) 59 CLR 633 (momentary inattention and dangerous driving)
- R v LKP (1993) 69 A Crim R 159