R v Burke

[2002] NSWCCA 456

CITATION:	R v BURKE [2002] NSWCCA 456
FILE NUMBER(S):	CCA 60286/02
HEARING DATE(S):	13 November 2002
JUDGMENT DATE:	13 November 2002
PARTIES :	Regina Wayne Allen BURKE (Applicant)
JUDGMENT OF:	Wood CJ at CL at 1; Dowd J at 2; Bell J at 29

LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S) :	01/31/0349
LOWER COURT JUDICIAL OFFICER :	English DCJ

COUNSEL :	P Power (Crown)
SOLICITORS:	Conditsis & Associates (Applicant) S E O'Connor (Crown)
CATCHWORDS:	Sentence appeal - dangerous driving occasioning greivous bodily harm - deliberate and grave conduct - no automatic full discount.
LEGISLATION CITED:	Crimes Act 1900 Crimes (Sentencing Procedures) Act 1999 Road Transport (General) Act 1999
CASES CITED:	R v Jurisic (1998) 45 NSWLR 209 R v Khatter [2000] NSWCCA 32 R v Whyte [2002] NSWCCA 343 R v Muscumeci NSWCCA (unreported, 30 October 1997) 9
DECISION:	Leave to appeal granted; appeal dismissed.

060286/02

WOOD CJ at CL
DOWD J
BELL J

Wednesday 13 November 2002

REGINA v WAYNE ALLEN BURKE

Judgment

1 WOOD CJ at CL: I agree with Dowd J.

2 DOWD J: The applicant entered a plea of guilty before English DCJ at Gosford on 15 March to a charge of dangerous driving, occasioning grievous bodily harm contrary to s52 A (3)(c) of the Crimes Act 1900 (“the Act”) which carries a penalty of seven years with an automatic disqualification for up to three years with a minimum of one year under s25 (1) of the Road Transport (General) Act 1999.

3 The applicant was sentenced to imprisonment for eighteen months commencing 9 May 2002 expiring 8 November 2003 with a non-parole period of thirteen months and two weeks her Honour directing release to parole on 22 June 2003 with a twelve months driving disqualification commencing 9 May 2002.

4 The plea of guilty was entered leaving, somewhat unusually, one fact still to be determined and there was a contested hearing on that particular fact relating to an allegation by the police that the applicant was involved in drag-racing.

5 The facts are that the applicant at 8.15 on Wednesday 18 October 2000 attended a service station at Langford Drive, Kariong. There was an issue about whether the applicant asked friends to go for a drive but, in fact, the vehicle that he drove had three passengers.

6 The applicant was a learner-driver but was not in the company of a licensed driver. The applicant accelerated his vehicle to about eighty kilometres per hour and overtook a vehicle on the wrong side at about that speed. The applicant pulled his vehicle back onto the correct side of the road then lost control, hitting a gutter, mounting the grass verge, colliding with a power pole, a rock wall and a small tree. By the time the police and ambulance arrived, all occupants of the vehicle were outside the vehicle.

7 The applicant and two of the passengers, Sarah Turnbull and Christian Marf, were taken to hospital. The applicant having sustained minor injuries was then released. He was found to have a reading of .090 grams of alcohol per hundred millilitres when analysed.

8 Ms Turnbull sustained severe facial lacerations which required plastic surgery. She suffered fractures to her pelvis which were treated by way of bed rest. She may require revisionary surgery on her facial scarring. She had, at the time of the hearing of the sentencing, obvious scarring to her face which her Honour the learned sentencing judge could discern.

9 The applicant admitted, in an electronic interview, to drinking prior to the collision and to driving at eighty kilometres an hour in what he said was a sixty kilometre zone. The speed signs, however, showed fifty kilometres per hour.

10 Her Honour found at the end of the hearing, contrary to the evidence given by the applicant, that another vehicle did drive past his vehicle and that he overtook that vehicle driving in such a manner as to cause one of his passengers to brace himself with his seat belt and Ms Turnbull to call out to him to slow down. Her Honour found that the road was wet, and that the road surface was rough.

11 Her Honour found that the applicant, being inexperienced in wet weather, drove in a manner dangerous to the passengers in his vehicle and other users of the road. She found that he was a learner-driver and not accompanied by a licensed driver. She found that he drove at a speed at least eighty kilometres faster than the speed limit and that he had .090 grams of alcohol in a hundred millilitres of blood. Her Honour accepted that, at the time of the collision, his blood concentration would have been in the range of 110 grams per hundred millilitres and .139 grams per hundred millilitres and her Honour found that at least 110, he had not eaten since lunch, he had consumed three full-strength schooners of beer in the space of forty minutes and that when he walked out into the fresh air and had a cigarette he was dizzy.

12 The applicant alleged in his evidence before her Honour that the dizziness had been caused by the cigarette, which submission was rejected by her Honour who found that the dizziness was caused by the alcohol.

13 Her Honour found that he ought not to have driven the vehicle, that he knew he ought not to drive with passengers when he had been drinking and her Honour made a finding that the decision on the night of the accident was an abandonment of responsibility.

14 Her Honour, more importantly, found that he was not a learner driver with limited experience, he had been a learner driver on his own admission for some twelve months prior to the accident. As her Honour found, he made a deliberate decision to drive his car to his girlfriend’s home, he was aware of the passengers in his vehicle and that one was not wearing a seatbelt. Her Honour found the speed excessive having regard to the speed limit, the conditions and the poor road condition, a factor known to him.

15 Her Honour then considered the subjective factors that he was nineteen when the offence occurred, and that he does not have a problem with alcohol. He had suffered a grievous tragedy when young but said he is no longer affected by the consequences of that, having undergone counselling. Her Honour accepted his expressions of remorse and contrition as genuine. The applicant had no criminal antecedents and an unblemished driving record. Her Honour found he was entitled to considerable leniency. Her Honour also found that he was of good name and character because of the statements tendered in his support.

16 Her Honour nonetheless found that his manner of driving and the results amounted to a very serious case of the type contemplated by s 53(3)(i).

17 The first ground of appeal on which the applicant relies is that her Honour mis-directed herself in applying Regina v Khatter [2000] NSWCCA 32, being a decision of 29 February 2000 and in particular para 31 of the judgment of her Honour Simpson J with which judgment the other two members of that Court agreed.

18 Her Honour found that the offence fell within the shades and gradations of moral culpability envisaged by Simpson J. I can see no manner in which Khatter has not been correctly applied. This was clearly an offence which was not one of momentary inattention, it was a deliberate act on the applicant’s part and the conduct, as I have already outlined as found by her Honour, was grave. Her Honour found there is an escalation of these types of offences before the Court and that the relative youth of the applicant and his good character of limited value in cases such as this. Her Honour found, in my view correctly, the importance of reflecting a significant element of general deterrence.

19 I do not accept the submission that her Honour did not correctly apply Khatter and I would dismiss that ground.

20 The second ground of appeal related to her Honour’s application of a seventeen per cent discount for the applicant’s early plea of guilty and the submission of the applicant is that the discount should have been in the range of twenty to twenty five per cent as being appropriate and that her Honour’s sentence of the applicant was therefore manifestly excessive.

21 It must be remembered in this context, that the decisions concerning discount for plea which this Court has established, show a range between ten and twenty five per cent for plea and plea at the earliest opportunity. It must be remembered that these are guideline decisions, that in fact the two years set out in the Regina v Jurisic (1998) 45 NSWLR 209 at 231(e) is a starting point after a plea of guilty. It is not the starting point before you take into account the plea of guilty.

22 The Crown has conceded in this application that the plea of guilty, coupled with the applicant’s remorse, could have entitled the applicant to the benefit of the full twenty five per cent discount, although that discount is within the range of what her Honour could have found.

23 Considerable care must be given in sentencing that the entry of a plea of guilty is not considered to be an entitlement to a full twenty five per cent discount. Seventeen per cent is in fact sixty eight per cent of the maximum discount allowed for a plea. There are many factors on sentencing that a sentencing judge has to take into account and if, in fact, we make it an automatic twenty five per cent, it makes the task of sentencing even more difficult in a serious matter such as this. When, in fact, a finding of contrition and remorse is made, that does not mean it is such as to entitle the applicant to a full twenty five per cent. That must remain a matter within her Honour’s discretion, taking into account in this case the very severe nature of the factors that her Honour found in terms of objective seriousness, notwithstanding the clear good character and other matters that speak so eloquently in favour of the applicant.

24 I do not consider it has been shown that in applying a reduction of seventeen per cent before establishing the sentence imposed by her Honour, that her Honour has erred, and I would dismiss this ground of appeal.

25 The third ground of appeal alleges that her Honour erred in declining to make a finding of special circumstances to reduce the non-parole period of the applicant’s sentence. Her Honour clearly in the judgment applied her mind to this fact, but did not articulate her reasons as she is not required to do so. Often there will be a variation beyond the restriction imposed by s44 of the Crime (Sentencing Procedures) Act 1999 where someone on a first period of imprisonment may need some time in rehabilitation and under supervision at the end of a lengthy sentence. This, however, is a relatively short sentence. The period of sentence, actual time to be served, is thirteen and a half months. To reduce below that would in my view be to create a penalty of actual time served which was less than the objective seriousness of this crime ought to have imposed.

26 I would not find fault. It must be remembered that the special circumstances are not an objective matter, it is special circumstances for reducing the statutory minimum of three-quarters of the head sentence and there is nothing in the case here in relation to the short sentence imposed that would warrant the making of such a finding to reduce the non-parole period.

27 The fourth ground is that her Honour’s sentence was manifestly excessive. The sentence her Honour imposed was within the guidelines laid down in the judgment of Jurisic, to which I have referred, and Regina v Whyte [2002] NSWCCA 343 has sufficiently reformulated the guidelines in Jurisic and it appears to me that her Honour has correctly applied this in sentencing. It is clear that a custodial sentence had to be imposed and that there was a high degree of moral culpability in this offence. The sentence in my view is reasonably proportional to the objective circumstances of the crime and her Honour applied what was stated in Regina v Muscumeci NSWCCA (unreported, 30 October 1997) at 9 that persuasive subjective considerations must not lead to inadequate weight being given to those objective circumstances.

28 In the circumstances, I would not allow that ground of appeal. I would, however, grant leave to appeal but would dismiss the appeal.

29 BELL J: I also agree.

30 WOOD CJ at CL: The order of the Court will be as Dowd J has proposed.

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