Regina v Bicheno

[1999] NSWCCA 148

CITATION:	Regina v Bicheno [1999] NSWCCA 148
FILE NUMBER(S):	CCA 60501/98
HEARING DATE(S):	9 June 1999
JUDGMENT DATE:	9 June 1999
PARTIES :	Regina v Ronald James Bicheno
JUDGMENT OF:	Grove J at 1; Carruthers AJ at 15

LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S) :	98/21/1121
LOWER COURT JUDICIAL OFFICER:	Mitchelmore DCJ

COUNSEL:	P. G. Berman (Crown) P. M. Skinner (Applicant)
SOLICITORS:	C. K. Smith ( Crown) Andrews (Applicant)
CATCHWORDS:	Criminal Law and Procedure - Dangerous driving causing grievous bodily harm - Blood alcohol concentration 0.263% - Two victims - Sentence
CASES CITED:	R v Jurisic 1999 101 A Crim R 269
DECISION:	Appeal dismissed

IN THE COURT OF
CRIMINAL APPEAL

60501/98

Grove J
Carruthers AJ

9 June 1999

REGINA v RONALD JAMES BICHENO

JUDGMENT

1    GROVE J: This is an application for leave to appeal against the severity of sentence imposed by Mitchelmore DCJ in the Penrith District Court on 21 August 1998. On that occasion the applicant had pleaded guilty to two counts of aggravated dangerous driving occasioning grievous bodily harm. The maximum prescribed penalty for each of those offences was eleven years imprisonment. The aggravated element of the crimes was driving a vehicle whilst there was present in the blood of the applicant a higher concentration of alcohol than 0.15 percent. Testing showed his blood alcohol level reading to be 0.263 percent. That is considerably in excess of the threshold of aggravation and, as noted by the sentencing judge, represents an excess by a multiple of five of the prescribed limit for driving a motor vehicle upon a public street.

2    The applicant was sentenced to four years imprisonment divided into minimum and additional terms of two years to be served concurrently on each count.

3    The offences arose out of the same incident on 25 June 1997 when a vehicle driven by the applicant came into collision with another. The driver of the second vehicle was a young woman aged 19 years. She suffered a fractured skull and injuries to the right eye, the damage to which resulted in its blindness. The victim in the second count was the de facto wife of the applicant who was riding as a passenger. They had been together during the day and after shopping met at about llam at the Macquarie Arms Hotel in Windsor. The time of the accident was approaching 7pm.

4    The applicant is aged 45 years and is a removalist by occupation. He was in permanent casual employment. He has been a professional driver for many years. Despite presumably long periods on the road he had a driving record which was clear but for a single offence of exceeding the speed limit in June 1985. The pleas of guilty were entered at the earliest opportunity.

5 Unsurprisingly, the argument advanced on behalf of the appellant has focused upon the decision of this court in R v Jurisic (1999) 101 A Crim R 269. It is perhaps important to mention that that decision was in its terms a guideline judgment and did not purport to usurp the authority of the Parliament to specify offence and to prescribe penalty. The judgment in particular of the Chief Justice did set out a number of factors which ought to be taken into consideration in order to determine appropriate penalty.

6    The submissions on behalf of the appellant have been couched in an examination of the individual ingredients of the matters taken into overall account as mentioned in Jurisic but it is important not to lose sight of the circumstance that the reference is ultimately to guideline and not to penalty alternative to that prescribed by Parliament.

7    Counsel for the appellant noted that a guideline promulgated was that, where there was a plea of guilty, a custodial sentence of less than two years in the case of dangerous driving causing grievous bodily harm should be exceptional. It should be observed in passing that that figure was mentioned in the context of there being present to a material degree any aggravating factor involving the conduct of the offender but that observation also needs to be seen in the context of being relative to an offence which did itself fall into the category of the more aggravated offence legislated to which the present applicant has pleaded guilty.

8    One matter adverted to on behalf of the applicant should be disposed of promptly. It was pointed out that the mathematical proportion between the available maximum penalty for what might be called the basic offence and the aggravated form of the offence demonstrated that the latter represented an increase of fifty seven percent. I reject the argument that that arithmetical observation promulgates a principle or practice that the appropriate sentence dealt with in accordance with the guideline judgment in Jurisic, should be increased by no more than fifty seven percent or a figure approximate to it when an offender is dealt with for the aggravated form of the offence.

9    I do not accept that when the Chief Justice said in McKinney NSW CCA No 51:

"Those guidelines (referring to Jurisic ) would need to be proportionately increased for the aggravated version of the offence".

he intended to establish a regime guided by arithmetical precision as distinct from one guided by the exercise of judgment.

10    The submissions advanced by the applicant's counsel led to a contention that the factors of increased intensity applicable to the applicant (principally the extremely high concentration of alcohol) were not sufficient to justify what was described as a doubling of the sentence laid down as a guideline in Jurisic. It should not be overlooked that the expression in Jurisic was "not less than" and it is appropriate that each case be determined upon its own facts.

11    The jurisdiction of this court is not provoked until error on the part of the sentencing Judge is demonstrated. For my part I am unable to detect any such error.

12    In the course of written submissions counsel for the applicant wrote:

"The whole of the circumstances of what took place on 25 June 1997 must be looked at and sentencing for both counts approached on the basis of totality, as his Honour obviously did."

13 I mention this submission only to record that nothing was advanced to the court concerning what has recently been said by the High Court in Pearce v The Queen, 72 ALJR 1416 concerning the approach to sentencing on multiple counts and the apparent difference between what has been the authoritative practice in New South Wales and that in other States. A reduction of the sentence imposed in the District Court would fractionalise the penalty in proportion to the prescribed maximum deemed approach by Parliament for a single offence. The existence of more than one victim is not a factor to be ignored. As I have indicated, the sentence imposed does not manifest any miscarriage in the sound exercise of judicial discretion.

14    I propose the application for leave to appeal be granted but the appeal be dismissed.

15    CARRUTHERS AJ: I agree.

16    GROVE J; The order of the court will therefore be as I have proposed.

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