Regina v James McGuinness

[1999] NSWCCA 304

CITATION:	Regina v James McGuinness [1999] NSWCCA 304
FILE NUMBER(S):	CCA 60044/99
HEARING DATE(S):	17/9/99
JUDGMENT DATE:	17 September 1999
PARTIES :	Regina James McGuinness
JUDGMENT OF:	Sully J at 1; Barr J at 15

LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S) :	98/61/0052
LOWER COURT JUDICIAL OFFICER:	Mahoney DCJ

COUNSEL:	L. Lamprati - Crown J. Andrews - Applicant
SOLICITORS:	D.P.P - Crown Gordon Garling Moffitt - Applicant
CATCHWORDS:
ACTS CITED:	Crimes Act 1950
DECISION:	Leave to appeal granted; appeal dismised

IN THE COURT OF
CRIMINAL APPEAL

60044/99

SULLY J
BARR J

Friday 17 September 1999

REGINA v James McGUINNESS

JUDGMENT

1   SULLY J: On 25 January 1999 the present applicant, Mr James Anthony Paul McGuiness, stood for sentence before Mahoney DCJ in the Sydney District Court following upon his entry of a plea of guilty to a charge of having driven a motor vehicle dangerously and in such a fashion as to have occasioned grievous bodily harm. Such an offence contravenes Section 52A of the Crimes Act 1950 and it attracts a maximum penalty of imprisonment for seven years.
2  

The learned primary judge imposed upon the applicant a sentence of imprisonment of two years apportioned between a minimum term of 18 months and an additional term of six 6 months.

3   The material facts are within a small compass and can be stated sufficiently for present purposes by citing them from the remarks on sentence:

"The offence occurred at about 2.35am on Sunday the 20th. You were in a Ford Falcon panel van, driving north on the Binni Creek Road Canowindra, in light fog. The road surface was dry and it was bitumen and in good condition. Twenty-two kilometres north of Cowra at the intersection of the Binni Creek Road and the Mandurama Road, which was at a T-intersection, instead of making a turn at the corner, you kept going. Your vehicle left the roadway and the front nearside door struck a tree ten metres into the bush. Apparently you had realised that you had got to the T-intersection, just as you did so. There is ten point two metres of skid mark from the northern road alignment which would seem to me to indicate, that by the time you had actually got to the Mandurama Road, you realised the problem, slammed the brakes on, and went ten metres into the bush where you hit the tree.
As a result of the impact, your passenger, David White, suffered serious injuries; compound mid-shaft fractures of the two bones in his left forearm; a fracture of the bone in his left upper arm. A fracture of both sides of his pelvis and a fracture of his left scapula.
Your blood alcohol reading was point one zero one. You told the police that you admitted drinking two schooners of Tooheys Light and three, seven ounce glasses of Scotch and Coke, between 8.30pm and 12.30pm at the Cowra Services Club, that could not possibly be right. A pharmacologist, Dr Judith Perl, has presented a report before the Court. It is part of exhibit A, and applying her well known and highly developed skills in this area, she is of the view that your driving ability would have been significantly impaired and that the reading, taken when it was, ranged over a possible reading from a lower limit of one point zero five to as high as two point one zero. That depended upon a lot of factors that she doesn't know about and that you are not able to tell us. But whatever it is, she is satisfied that whatever the precise reading was, it represented in excess of twelve and a half standard drinks."

4 It surely needs no extended emphasis that the offence in question was, in objective terms, a very serious one. It is not necessary to comment upon the facts; their gravity is apparent. 5 As to the relevant subjective matters, the first matter to be brought properly to account is the fact that the offence here in question was the third drink driving offence of which the applicant was guilty over a comparatively short period. 6 On 9 November 1994 in the Cowra Local Court the applicant was convicted and dealt with upon a charge of having driven a motor vehicle at a time when there was a low range concentration of alcohol in his blood. He was fined $500 and disqualified for six months. Not so very much later, on 5 January 1985, and again in the Cowra Local Court, the applicant was dealt with for two related offences. The first of them was the offence of having driven a motor vehicle at a time when he had in his blood the low range concentration of alcohol; and the second was the related offence of having driven at a time when he was disqualified from doing so. 7 On the first of those offences he was again fined $500 and his licence was ended for twelve months. As to the first of them, he was ordered to perform 120 hours of community service, and was disqualified for a period of three years from holding a licence. He appealed successfully against that disqualification and the three years was reduced to 17 months. I do not think that it is untoward or harsh or in any other sense to observe that it must have been crystal clear to the applicant that, given the events I have recited, he had had every proper leniency extended to him in relation to his drink driving record. 8 That record makes it very much more difficult than might otherwise have been the case to give the present applicant a very significant reduction on account of subjective matters. Repeated drink driving offences, it needs to be said again and again and with every proper resolve and emphasis, progressively reduce the sentencing margin within which a sentencing Judge may show leniency to the offender. The Courts have repeatedly said so; and it must be seen that the Courts intend to be taken seriously in what they say. 9 It is true there are other matters to be taken into account. He was a young man; apart from his drink driving record, he had no matters of importance for present purposes. He seems to have exhibited proper remorse for what he had done. 10 Dealing with his drinking problem, it was put on the applicant's behalf that he had indicated to his Honour that he had not had a drink since the accident; although the pre-sentence report before the primary Judge, indicated, worryingly, that the applicant needed to consider the ramifications of his abuse of alcohol and that his denial of the problem was of concern. The applicant was having some difficulties in recognising his problem with the consumption of alcohol and in doing something promptly about overcoming it. 11 The point of the submissions put for the applicant in connection with his present application really comes down to the proposition that the aggregate sentence of two years is not appealable upon the application of proper principle; but that the apportionment, according to proper principle, of the sentence, should be reviewed by this Court. 12 S6(2) of the Criminal Appeal Act provides that this Court must dismiss the application unless it is persuaded that some other sentence is "warranted in law". I am of the opinion that a more lenient apportionment is not “warranted in law”. 13 The point is taken that the remarks on sentence do not in terms advert to "special circumstances". That is so; although I think it might fairly be said that his Honour was dealing with this matter in what was undoubtedly a busy list; and upon facts that were quite straight-forward. Nevertheless, the current state of appellate authority is such that it cannot be gainsaid that it would have been better for his Honour to have said something, however brief, about “special circumstances” in particular. That his Honour did not do so does not entail, in my opinion, that a different sentence of imprisonment is "warranted in law". 14 I would grant the application but dismiss the substantive appeal. 15 BARR J: I agree. 16 SULLYS J: The orders of the Court will be as I have indicated.

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