R v Turner

[2000] NSWCCA 455

CITATION:	R v Turner [2000] NSWCCA 455
FILE NUMBER(S):	CCA 60232/00
HEARING DATE(S):	27 October 2000
JUDGMENT DATE:	27 October 2000
PARTIES :	Regina Michael A Turner
JUDGMENT OF:	Wood CJ at CL at 1; Whealy J at 19

LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S) :	99/51/0177
LOWER COURT JUDICIAL OFFICER :	Kirkham DCJ

COUNSEL :	Ms P. Hock Mr M. Williams QC/Mr Dailly
SOLICITORS:	S.E. O'Connor Watson McNamara & Watt
DECISION:	Leave to appeal granted; Appeal dismissed

IN THE COURT OF
CRIMINAL APPEAL

60232/00

WOOD CJ at CL
WHEALY J

FRIDAY 27 OCTOBER 2000

REGINA v MICHAEL ANTHONY TURNER
JUDGMENT

1 WOOD CJ at CL: This is another application for leave to appeal against the severity of a sentence of three years imprisonment with a non-parole period of two years and three months imposed by his Honour Judge Kirkham, following the applicant's plea of guilty to one count of aggravated dangerous driving occasioning grievous bodily harm. That sentence was imposed upon the same day as the sentenced imposed in the appeal just decided by the Court in Khan. 2 The reasons for sentence contained a similar misstatement of the decision in Jurisic and, for the reasons identified in Khan, I consider it appropriate to also grant leave in this matter and then to review the matter afresh. 3 The facts, as found by his Honour, were as follows: 4 At about 7.30pm on 4 November 1997 the applicant and Gregory John Faint went to the Armidale Ex-Services Club for a few drinks. An issue has arisen today as to who drove Mr. Faint’s vehicle to that club but to my mind that is not a matter of any moment so far as the outcome of the sentencing proceedings or this appeal are concerned. 5 At 10.30pm the pair then walked up to the New England Hotel and had a few more drinks. After midnight they returned to the Ford Falcon utility of Mr Faint. The applicant asked or volunteered to drive that vehicle. He drove up Dumaresq Street in an easterly direction and then south into Canambe Street. Near the intersection of Barney Street he lost control of the vehicle which skidded across the roadway, over the kerb and thereafter continued over a grassed verge before colliding with a timber railing fence, demolishing some twenty-five metres of it in the process. 6 When the police arrived at the scene they formed the view that both the applicant and Mr Faint were heavily intoxicated. They noticed a number of empty beer bottles upon the floor of the car. 7 A blood sample was taken from the applicant at the hospital at 1.20am on the morning of 5 November, returning a reading of 0.194, again a significantly high level of intoxication. 8 The applicant suffered a wound to his head. Mr Faint suffered a laceration to his chin requiring suturing, as well as a closed fracture of the left proximal humerus. Some weeks later he had to undergo surgery because of failure to achieve union. 9 At the time of the offence the applicant was an unlicensed driver. He was interviewed by police on 7 June. He admitted to drinking ten schooners of beer and a couple of bourbons at the Ex-Services Club and then a couple of schooners of beer at the New England Hotel. 10 I repeat the observations made in Khan concerning the effect of the decision in Jurisic and the qualification noted in McKinney where the offence, as charged here, is one under s 52A(4) of the Crimes Act. There is no point in the repetition of those remarks in this appeal. 11 The present case is one in which there were also relevant circumstances of aggravation, namely, the very high level of intoxication, the obvious speed at which the vehicle must have been travelling when the applicant lost control, the number of persons potentially at risk and the fact that the road was wet due to misty rain which, of itself, called for a degree of caution. As in the case of Khan, there could be no quarrel with the finding of abandonment of responsibility. 12 For identical reasons to those outlined in Khan, having regard to the more serious form of the offence charged and the facts outlined, I am by no means satisfied that the bar was set too high for the objective seriousness of the applicant's criminality. 13 Similarly, I am quite unpersuaded that the subjective circumstances which his Honour took into account called for any tempering of the sentence. At the time of the offence the applicant was unlicensed, and he had prior convictions for high range PCA which had led to his disqualification, as well as convictions for driving unregistered and uninsured motor vehicles. These matters did display some scant regard for his responsibilities as a motorist. 14 It may also be noted that having once been disqualified, he apparently chose not to re-apply for a licence, a matter which may well have operated in his favour had he adhered to any commitment then made to refrain from ever taking charge of a motor vehicle again. However, the unfortunate fact is that he had a subsequent appearance for an offence of unlicensed driver before this occurrence, which was dealt with under s 556A of the Crimes Act. That should have stood as a significant caution as to the dangers of him again taking the wheel. 15 Additionally, he had convictions for other minor matters occurring after arrest, there having been a passage of two and a half years between the offence and his appearance for sentence, attributable to his failure to appear when the matter had been earlier listed. 16 The subjective circumstances noted by his Honour included the plea of guilty, his contrition, the fact that he was in employment and had the support of his family. His Honour also expressly took into account the fact that following this accident, to his credit, he sought treatment for his problem with alcohol and aggression. Those matters did operate in his favour but there is nothing to suggest that his Honour failed to give them full credit. Indeed the contrary is the position. It appears to me that his Honour carefully weighed those matters and gave sympathetic consideration to them. They were not, to my mind, of such a kind as to justify any further tempering of the sentence. 17 Similarly, as in the case of Khan, those matters upon which he was entitled to rely as showing rehabilitation and a re-establishment of his good character are of limited relevance for cases such as the present, where general deterrence necessarily assumes a prominence. When the present case is considered in comparison with Khan, any argument which might arise based upon the proposition that the sentence was excessive by reason of the lesser injuries occasioned to the passenger disappears. There was a sufficient difference between the sentences imposed in these two cases to allow for that circumstance. To my mind, no error of law of the kind which was discussed in Dinsdale by the High Court (2000 HCA 54) has been established. 18 For those reasons I would propose that leave to appeal be granted but the appeal be dismissed. 19 WHEALY J: I agree. 20 WOOD CJ at CL: The order of the Court will be, therefore, as I have proposed.

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