Court of Criminal Appeal
New South Wales
Case Title: R v Kyle Medium Neutral Citation: [2014] NSWCCA 300 Hearing Date(s): 22 August 2014 Decision Date: 09 December 2014 Before: Macfarlan JA at [1];
Hidden J at [2];
Adams J at [3]Decision: 1.Appeal allowed.
2.The sentence is quashed and, in lieu thereof, the respondent is sentenced to imprisonment for 4 years 6 months commencing 17 March 2014 comprising a non-parole period of 2 years 9 months and a balance of term of 1 year 9 months.
3.The respondent will be eligible to be considered for release on parole on 17 December 2016.
Catchwords: CRIMINAL LAW - appeal - appeal against sentence - whether sentence manifestly inadequate - objective seriousness of offence - whether special circumstances justified variation of statutory ratio - residual discretion to decline to interfere with sentence Legislation Cited: Crimes Act 1900 (NSW), s 52A(4)
Crimes (Sentencing Procedure) Act 1999 (NSW), s 44Cases Cited: Application by the Attorney General No 3 of 2002 (The PCA Guideline Judgment) [2004] NSWCCA 303; 61 NSWLR 305; 147 A Crim R 546
Green v The Queen; Quinn v The Queen [2011] HCA 49
R v Millwood [2012] NSWCCA 2
R v Jurisic (1998) 45 NSWLR 209
R v Whyte [2002] NSWCCA 343; 55 NSWLR 252; 134 A Crim R 53
Wong v The Queen (2001) 76 ALJR; 185 ALR 233Category: Principal judgment Parties: Regina (Appellant Crown)
Joshua Andrew Kyle (Respondent)Representation - Counsel: Counsel:
S Dowling SC and G Drennan (Appellant Crown)
P Lange (Respondent)- Solicitors: Solicitors:
Solicitor for Public Prosecutions (Appellant Crown)
Aquila Lawyers (Respondent)File Number(s): 2012/265689 Decision Under Appeal - Court / Tribunal: District Court - Before: Knox SC DCJ - Date of Decision: 17 March 2014 - Court File Number(s): 2012/265689
JUDGMENT
MACFARLAN JA: I agree with Adams J.
HIDDEN J: I agree with Adams J.
ADAMS J:
Introduction
This is an appeal by the Director of Public Prosecutions against a sentence imposed on the respondent for an offence of aggravated dangerous driving contrary to s 52A(4) of the Crimes Act 1900, to which he had pleaded guilty. He was sentenced on 17 March 2014 to a term of 3 years imprisonment commencing on that date with a non-parole period of 1 year and 9 months. The maximum term of imprisonment applying to the offence is 11 years. There is no standard non-parole period. The sentence reflects a discount of 25% arising from the respondent's timely plea of guilty.
The offender's driving caused a collision which resulted in the infliction of grievous bodily harm on the victim with permanent debilitating effects. The circumstance of aggravation was that the offender had, at the time of impact, the prescribed concentration of alcohol, as it happened, 0.206 grams of alcohol per 100 ml of blood.
Facts
These were, in substance, not controversial and no submission was made in this Court that the factual findings of the learned sentencing judge should not be accepted.…
Details
- AGLC
- R v Kyle [2014] NSWCCA 300
- Case
- [2014] NSWCCA 300
- Decision Date
CaseChat Overview and Summary
The case of R v Kyle involved an appeal against the sentence imposed by the lower court for causing grievous bodily harm by dangerous driving while under the influence of alcohol. The offender's actions resulted in severe and permanent injuries to the victim, Mr Krajsic, who suffered from a fractured pelvis, spinal cord injury, and loss of mobility, among other debilitating effects. The offender was found to have a blood alcohol concentration well above the legal limit at the time of the incident.
The court was tasked with determining whether the original sentence was manifestly inadequate, considering the objective seriousness of the offence, and whether special circumstances justified any variation from the statutory sentencing ratio. The court also had to consider if there were grounds to exercise its residual discretion to decline to interfere with the sentence.
The court found that the sentence imposed by the lower court did not adequately reflect the objective seriousness of the offender's conduct, given the extent of his intoxication and the permanent injuries inflicted upon the victim. The court concluded that the sentence was manifestly inadequate and demonstrated a misapplication of principle. The offender's significant alcohol abuse and depression, partly due to the harm caused, were also taken into account. The court set a new starting point for the sentence at 6 years imprisonment, resulting in a head sentence of 4 years and 6 months with a discount. The non-parole period was reconsidered and extended to ensure adequate supervision and rehabilitation opportunities post-release.
The court's final orders involved the imposition of a new sentence of 4 years and 6 months imprisonment, with a non-parole period of 2 years and 9 months. This decision underscored the need for sentences to adequately reflect the gravity of the offence and the need for effective rehabilitation of the offender.
The court was tasked with determining whether the original sentence was manifestly inadequate, considering the objective seriousness of the offence, and whether special circumstances justified any variation from the statutory sentencing ratio. The court also had to consider if there were grounds to exercise its residual discretion to decline to interfere with the sentence.
The court found that the sentence imposed by the lower court did not adequately reflect the objective seriousness of the offender's conduct, given the extent of his intoxication and the permanent injuries inflicted upon the victim. The court concluded that the sentence was manifestly inadequate and demonstrated a misapplication of principle. The offender's significant alcohol abuse and depression, partly due to the harm caused, were also taken into account. The court set a new starting point for the sentence at 6 years imprisonment, resulting in a head sentence of 4 years and 6 months with a discount. The non-parole period was reconsidered and extended to ensure adequate supervision and rehabilitation opportunities post-release.
The court's final orders involved the imposition of a new sentence of 4 years and 6 months imprisonment, with a non-parole period of 2 years and 9 months. This decision underscored the need for sentences to adequately reflect the gravity of the offence and the need for effective rehabilitation of the offender.
Orders
Orders of the court
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Background
Background to the litigation
The offender's driving caused a collision which resulted in the infliction of grievous bodily harm on the victim with permanent debilitating effects. The circumstance of aggravation was that the offender had, at the time of impact, the prescribed concentration of alcohol, as it happened, 0.206 grams of alcohol per 100 ml of blood. Facts These were, in substance, not controversial and no submission was made in this Court that the factual findings of the learned sentencing judge should not be accepted. The following account is largely taken from his Honour's remarks on sentence. The respondent was, at the time of the accident, the holder of a provisional licence but no point, one way or the other, depends on this. During the evening before the accident the respondent had been drinking with some friends at a hotel in Milperra and had returned to a house in Warwick Farm where he continued drinking homemade alcohol throughout the evening and into the early hours of the morning. At 6 am his friends contacted an ambulance after finding him difficult to rouse and he was taken to Liverpool Hospital and admitted at 8.11 am. When examined by the doctor he was drowsy and obviously intoxicated. His level of consciousness had improved. Blood tests were ordered together with intravenous thiamine and he was observed for a period of time to ensure that he was not developing evidence of a serious toxidrome in the form of an evolving acidosis or QT prolongation. About three hours after his admission his blood alcohol concentration was 0.363 g/100ml. He remained under observation until about 3.30 pm, with his condition gradually improving. He had been walking freely to the toilet and was back to a normal level of consciousness. On reassessment, he was deemed medically safe for discharge. He was ultimately discharged at 3.27 pm on 26 August 2012. At 4.34 pm that afternoon the respondent was driving his motor vehicle in a general northerly direction along the Northern Road Llandilo where there was a gradual right bend approximately 300 m south of the site of the accident. At this time the victim, Mr Krajsic (36 years old at the time) was driving his motorcycle in a southerly direction. The respondent's vehicle crossed the double centre unbroken lines entering the southbound lane and collided with the motorcycle. Just before this, another vehicle travelling in front of the motorcycle was forced off the road to avoid collision with the respondent's car. The driver thought he saw the respondent's head on his chest and it is possible he had fallen asleep. The road conditions had nothing to do with the accident. The respondent's vehicle was at least four metres over the centre line at the time of impact. Mr Krajsic was thrown on to the front windscreen of the respondent's car and vaulted over it. He suffered a fractured pelvis requiring surgical fixation, fractures to four ribs, displaced spinal fractures, spinal cord injury, cardiac arrest and renal failure. He has been left with no movement in his left leg and partial strength in his right leg which might improve if he were to have further surgery. He has no sexual function. He is permanently wheelchair-bound and needs assistance showering and dressing and with other routine activities. He suffers considerable pain and discomfort. He cannot work at all in the security field where he had been employed for 18 years before the accident. Of course he can no longer play sport. The financial impact has been significant and he was, at the time of the sentencing, on a disability pension. The sentencing judge's description of the injuries as catastrophic is entirely justified.
Evidence
Evidence Before The Court
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Decision
Reasons for decision
To the extent that the sentence exceeds the guideline, it may be accepted that it conforms with Whyte, but that does not go far. Mr Lange candidly conceded that the statistics are of limited value without reference to the actual cases which they reflect. The only case to which he referred us was Millwood, in which the Crown appeal against sentence was dismissed. In that case the respondent was sentenced, in respect of one count of aggravated dangerous driving occasioning death to a term of 4 years imprisonment with a non-parole period of 3 years and in respect of one count of aggravated dangerous driving occasioning grievous bodily harm (arising out of the same accident) a sentence of 2 years with a non-parole period of 9 months, overall an aggregate term of imprisonment of 5 years with a non-parole period of 3 years and 9 months. A discount of between 15-20% was allowed. Certainly, the sentence in relation to the second count was distinctly lower than that imposed in the present case. However, the harm (though substantial) suffered by the victim was very much less than that suffered by the victim in the present case; the respondent was not nearly so intoxicated as in this case and his subjective features were very much more significant. Conclusion In my respectful view the sentence under appeal did not reflect adequately the objective seriousness of the respondent's offending, given the extent of his intoxication, the period and distance he drove before the collision, the fact that he must have appreciated he was unfit to drive had he given the question any genuine thought whatever his befuddled mind led him to believe about his being permitted to leave hospital, and the permanent and greatly debilitating injuries to the victim. Accepting that the respondent's subjective features are significant, it is nevertheless my respectful conclusion that the sentence was so manifestly inadequate as to demonstrate a misapplication of principle, though not patent, by the sentencing judge. In my view the appropriate starting point for this offence could not appropriately be less than 6 years imprisonment, yielding a head sentence of 4 years and 6 months when the utilitarian discount is applied. The non-parole period requires to be reconsidered at all events and it is not necessary to consider whether the sentencing judge erred in this respect. A critical issue is the respondent's alcohol abuse, and his high level of depression in part arising from the accident and the significant harm he caused to the victim (as distinct merely from the imprisonment he must undergo). As Dr Jacmon observed, depression is frequently associated with alcohol abuse and relapse prevention therefore is not only desirable in the respondent's case but also in the public interest. Accordingly, it seems to me that a lengthier period than otherwise would be available under the statutory formula of parole is desirable. This is particularly so in light of the increased non-parole period which must inevitably have the effect of lengthening the respondent's isolation from society and, in particular, his family support. The length of time spent in custody does not reduce, but rather increases the need for supervision in a case such as the present in the hope that rehabilitation which has hopefully been effected in the gaol environment can be reinforced in the challenges presented by the outside world. The proposed non-parole period of 2 years 9 months is approximately the same percentage of the head sentence as that allowed by the sentencing judge.
Ratio Decidendi
Legal Principle Established
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