Regina v Vale

[2004] NSWCCA 469

CITATION:	Regina v Vale [2004] NSWCCA 469
HEARING DATE(S):	23/11/04
JUDGMENT DATE:	20 December 2004
JUDGMENT OF:	Santow JA at 1; Bell J at 48; Howie J at 49
DECISION:	Leave to appeal granted; Appeal allowed, and the orders made by English DCJ quashed. In lieu thereof the applicant is sentenced to a term of imprisonment comprising a non-parole period of two years with that period to commence on 14 August 2003 and to expire on 13 August 2005, the date upon which the applicant is eligible to be released to parole. There should be a balance of the term of the imprisonment of two years and three months which is to commence on 14 August 2005 and to expire on 13 November 2007. The applicant is disqualified from driving for a period of five years, commencing on 14 August 2003.
LEGISLATION CITED:	Crimes Act 1900
CASES CITED:	The Queen v De Simoni (1980-81) 147 CLR 383
PARTIES :	Regina Ian John VALE (aka Walford) (Applicant)
FILE NUMBER(S):	CCA 2004/2218
COUNSEL:	Mr D Frearson (Crown) Ms H Cox (Applicant)
SOLICITORS:	S Kavanagh SE O'Connor (Applicant)

LOWER COURTJURISDICTION:	District Court
LOWER COURT FILE NUMBER(S):	03/51/0102
LOWER COURT JUDICIAL OFFICER :	English DCJ

2004/2218 CCAP

SANTOW JA
BELL J
HOWIE J

20 DECEMBER 2004

Regina v Ian John VALE (aka Walford)

Judgment

1 SANTOW JA:

INTRODUCTION
The applicant, Ian John Vale (aka Walford), applies pursuant to s5(1)(c) of the Criminal Appeal Act (1912) for leave to appeal against the gravity of the sentence imposed by English DCJ on 15 August 2003.

2 The applicant entered a plea of guilty, and was adjudged truly remorseful and contrite, receiving a reduction in sentence of 25%. The plea was in response to a charge under s52A(1) of the Crimes Act 1900 (NSW), for dangerous driving occasioning death. The sentence was five year’s imprisonment (from 14 August 2003 to 13 August 2008) with a non-parole period of two years six months such that the applicant would be eligible for release on 13 February 2006. The applicant was also disqualified from driving for five years.

3 Essentially the grounds of appeal are these:

(a) that the sentencing judge took into account as an aggravating factor a fact which would have warranted a conviction for a more serious offence, so breaching the principle that a judge, in imposing sentence, is entitled to consider all the conduct of the accused, including that which would aggravate the offence, but cannot take into account circumstances of aggravation which would have warranted a conviction for a more serious offence; The Queen v De Simoni (1980-81) 147 CLR 383 at 389 per Gibbs CJ,

(b) the sentencing judge made a finding that the death of the victim was an aggravating feature of the offence when the death of the victim was in fact an element of the offence, and

(c) the sentence imposed was manifestly excessive.

The Statutory Provisions

4 Section 52A of the Crimes Act 1900 is in the following terms:

“ 52A Dangerous driving: substantive matters
(1) Dangerous driving occasioning death
A person is guilty of the offence of dangerous driving occasioning death if the vehicle driven by the person is involved in an impact occasioning the death of another person and the driver was, at the time of the impact, driving the vehicle:
(a) under the influence of intoxicating liquor or of a drug, or
(b) at a speed dangerous to another person or persons, or
(c) in a manner dangerous to another person or persons.
A person convicted of an offence under this subsection is liable to imprisonment for 10 years.
(2) Aggravated dangerous driving occasioning death
A person is guilty of the offence of aggravated dangerous driving occasioning death if the person commits the offence of dangerous driving occasioning death in circumstances of aggravation. A person convicted of an offence under this subsection is liable to imprisonment for 14 years.
(3) Dangerous driving occasioning grievous bodily harm
A person is guilty of the offence of dangerous driving occasioning grievous bodily harm if the vehicle driven by the person is involved in an impact occasioning grievous bodily harm to another person and the driver was, at the time of the impact, driving the vehicle:
(a) under the influence of intoxicating liquor or of a drug, or
(b) at a speed dangerous to another person or persons, or
(c) in a manner dangerous to another person or persons.
A person convicted of an offence under this subsection is liable to imprisonment for 7 years.
(4) Aggravated dangerous driving occasioning grievous bodily harm
A person is guilty of the offence of aggravated dangerous driving occasioning grievous bodily harm if the person commits the offence of dangerous driving occasioning grievous bodily harm in circumstances of aggravation. A person convicted of an offence under this subsection is liable to imprisonment for 11 years.
(5) When vehicle is involved in impact—generally
For the purposes of this section, the circumstances in which a vehicle is involved in an impact occasioning the death of, or grievous bodily harm to, a person include if the death or harm is occasioned through any of the following:
(a) the vehicle overturning or leaving a road while the person is being conveyed in or on that vehicle (whether as a passenger or otherwise),
(b) an impact between any object and the vehicle while the person is being conveyed in or on that vehicle (whether as a passenger or otherwise),
(c) an impact between the person and the vehicle,
(d) the impact of the vehicle with another vehicle or an object in, on or near which the person is at the time of the impact,
(e) an impact with anything on, or attached to, the vehicle,
(f) an impact with anything that is in motion through falling from the vehicle,
(g) the person falling from the vehicle, or being thrown or ejected from the vehicle, while being conveyed in or on the vehicle (whether as a passenger or otherwise),
(h) an impact between any object (including the ground) and the person, as a consequence of the person (or any part of the person) being or protruding outside the vehicle, while the person is being conveyed in or on the vehicle (whether as a passenger or otherwise).
(6) When vehicle is involved in causing other impacts
For the purposes of this section, a vehicle is also involved in an impact occasioning the death of, or grievous bodily harm to, a person if:
(a) the death or harm is occasioned through the vehicle causing an impact between other vehicles or between another vehicle and any object or person or causing another vehicle to overturn or leave a road, and
(b) the prosecution proves that the vehicle caused the impact.
(7) Circumstances of aggravation
In this section, circumstances of aggravation means any circumstances at the time of the impact occasioning death or grievous bodily harm in which:
(a) the prescribed concentration of alcohol was present in the accused’s blood, or
(b) the accused was driving the vehicle concerned on a road at a speed that exceeded, by more than 45 kilometres per hour, the speed limit (if any) applicable to that length of road, or
(c) the accused was driving the vehicle to escape pursuit by a police officer, or
(d) the accused’s ability to drive was very substantially impaired by the fact that the accused was under the influence of a drug (other than intoxicating liquor) or a combination of drugs (whether or not intoxicating liquor was part of that combination).
(8) Defences
It is a defence to any charge under this section if the death or grievous bodily harm occasioned by the impact was not in any way attributable (as relevant):
(a) to the fact that the person charged was under the influence of intoxicating liquor or of a drug or a combination of drugs, or
(b) to the speed at which the vehicle was driven, or
(c) to the manner in which the vehicle was driven.
(9) Definitions
In this section:
drug has the same meaning as it has in the Road Transport (Safety and Traffic Management) Act 1999.
object includes an animal, building, structure, earthwork, embankment, gutter, stormwater channel, drain, bridge, culvert, median strip, post or tree.
prescribed concentration of alcohol means a concentration of 0.15 grammes or more of alcohol in 100 millilitres of blood.
road means:
(a) a road or road related area within the meaning of the Road Transport (General) Act 1999 (other than a road or road related area that is the subject of a declaration made under section 9 (1) (b) of that Act relating to all of the provisions of that Act), or
(b) any other place.
vehicle means:
(a) any motor car, motor carriage, motor cycle or other vehicle propelled wholly or partly by volatile spirit, steam, gas, oil, electricity, or by any other means other than human or animal power, or
(b) a horse-drawn vehicle,
whether or not it is adapted for road use, but does not mean a vehicle used on a railway or tramway.”

SALIENT FACTS

5 The background facts giving rise to the charge are not substantially in dispute, being contained in a statement of facts constituting exhibit 2 on sentence.

6 Mr Ian Vale (aka Walford, and known by his nickname ‘Moe’) is a 42 year-old unemployed aboriginal man from the Armidale region where his early years were spent in great poverty with both parents suffering alcohol addiction. According to family members, as recorded in the Probation and Parole report, the children of the family had on occasion been given bottles full of alcohol and had been admitted to hospital for being malnourished and severely sunburned.

7 He has since married and remains with his wife. His five adult children have all left home, and there are eleven grandchildren.

8 He has a number of prior convictions for theft and has a number of prior driving offences (unlicensed driving, speeding, drink-driving). The most recent drink-driving charge was for an offence in 1993.

9 The applicant gave evidence that his wife remains supportive of him.

10 The motor vehicle accident out of which the present charge arose occurred at 10.30PM on 3rd February 2003 on the Thunderbolts Way, Uralla (about 17km south of the township).

11 Mr Vale was the driver of a Ford station wagon with five passengers. The deceased was one of the passengers and a long-time friend.

12 Mr Vale and his friends had been at the home of the deceased in Armidale. They had been drinking. A decision was made to drive two of the group home to Walcha.

13 The deceased commenced driving but Mr Vale took over as he, correctly, believed himself to be less intoxicated, though as the evidence reveals, both were heavily intoxicated.

14 The accident and its tragic aftermath occurred as follows:

(a) Mr Vale’s vehicle was overtaken by a Magna sedan driven by Mr Graeme Fairweather;

(b) With high-beam remaining on, Mr Vale tailgated the Magna for 20-30 metres before commencing to overtake it;

(c) In overtaking, Mr Vale’s wagon veered suddenly to the left and collided with the front off side of the Magna. Both vehicles went out of control in the direction of the left shoulder of the road and then rolled sideways;

(d) In the process, the deceased was ejected from the car driven by the applicant and fatally injured.

15 After the accident, Mr Vale left the scene to get help, attending on the premises of first Mrs Carlon (who telephoned emergency services) and then Mr Croft, before being brought back to the scene for treatment.

16 At the scene he became very distressed. A number of persons noted Mr Vale to be affected by alcohol. Mr Vale made admissions to the Police of having been intoxicated and a Roadside Breath Test (RBT) was administered. The RBT displayed a reading of 0.125, and the Police arrested Mr Vale.

17 Mr Vale and a number of others involved in the accident were taken by ambulance to Armidale Hospital for treatment. At 1.15 am, some 2¾ hours after the impact (see s52AA(3) of the Crimes Act 1900) a blood test was taken. It revealed a blood alcohol reading of .160 g/100 ml of blood. Traces of Delta-9-THC acid was also found in his blood, being an inactive metabolic product of the major active drug in cannabis. There is however no suggestion that he was affected by anything other than the alcohol.

18 The opinion of the pharmacologist, Dr Judith Perl, was that assuming he had been drinking all day since lunchtime, then the level of alcohol in his blood would be between 0.140 g/100 ml and 0.200 g/100 ml, the latter being the “most likely level”. The sentencing judge so found.

19 Mr Vale pleaded guilty before a Magistrate to a charge under s 52A(1)(a) Crimes Act 1900 of “dangerous driving occasioning death”, which carried a maximum penalty of 10 years. No charge was laid of “aggravated dangerous driving causing death” under s52A(2) of that Act, being the graver offence where the maximum penalty is 14 years. “Circumstances of aggravation” are defined under s52A(7), sub-paragraph (a) of which includes where “the prescribed concentration of alcohol [being a concentration of 0.15 grams or more of alcohol in 100 millilitres of blood] was present in the accused’s blood”.

REMARKS ON SENTENCING

20 After setting out the background and facts, a summation of what the sentencing judge said is as follows:

21 It cannot be accepted that the blood alcohol reading should be taken at the lower end of the scale given by the Pharmacologist – the most likely level was found to be 0.200 g/100 ml as calculated by her. The Pharmacologist was not called or cross-examined, but her assumptions were based on the history given to the police by Mr Vale.

22 The sentencing judge directed herself to have close regard to the degree of moral culpability involved – which she found to be high, as there is no case of momentary lapse or inadvertence.

23 The sentencing judge then directed herself to have regard to the following “aggravating factors” which she said were present:

(a) The number of people at risk (five in his vehicle and one in the Magna);

(b) The death of Mr Daley;

(c) The degree of intoxication being 0.200 g/100 ml blood alcohol level;

(d) Tailgating with lights on high-beam and overtaking the Magna in an unsafe manner;

(e) Mr Vale’s intention to drive from Armidale to Walcha, and

(f) The fact Mr Vale was unlicensed and made a conscious decision to drive when he knew he was both unlicensed and had been drinking.

24 The sentencing judge also directed herself to ss21A(4), 42A and 37A of the Crimes Sentencing Procedure Act and the guideline judgments of the Court of Criminal Appeal.

25 She then concluded:

“I find in the circumstances his moral culpability to be high. This is not a case where there is said to be a momentary lapse or any advertence on the part of the offender. There is no alternative but a term of full-time imprisonment to satisfy the requirements of both specific and general deterrence. It is clear from the evidence of the offender and the opinion from the Department of Corrective Services, that there is a need for rehabilitation.

I am asked to find special circumstances and vary the prima facie ratio and I will do so. I have had regard to the decision of Fernando and the offender is entitled to a degree of leniency in recognition of the problems of alcohol abuse which was clearly a very significant factor in his upbringing and significant in the cause of this accident. I have taken into account his plea of guilty as a show of contrition and as having public utility and I have reduced his sentence by 25 per cent.”

26 After imposing sentence the sentencing judge added this:

“… It is my strong recommendation that upon release to parole, you enter a full-time rehabilitation program to address issues of alcohol and drug abuse and attend any other programs recommended by the Probation Service during the currency of the parole. Failure to comply with the reasonable directions of the Service, will constitute a breach of parole.”

DISPOSITION

27 When the sentencing judge imposed sentence, she found as a matter of aggravation that Mr Vale had a blood alcohol reading of 0.200 g/100 ml. The critical passage in the Remarks on Sentencing where error is asserted is as follows:

“In determining the appropriateness of full time custody and the length of the sentence, I am required to give close attention to the degree of moral culpability involved. This is a critical component of the objective circumstances involved. I am also to have regard to the aggravating factors which have been established in the authorities and those present in this case are: the number of people at risk, that is five people in the vehicle driven by the offender and one in the vehicle overtaken by him; the death of Mr Daly; the degree of intoxication, 2 grams of alcohol per one hundred millilitres of blood ; the tailgating with lights on high beam and the overtaking of Mr Fairweather’s vehicle in an unsafe manner; the offender’s intention to drive from Armidale to Walcha, a distance I understand of some fifty kilometres; and the fact that he was unlicensed and he made the conscious decision to drive another vehicle when he knew full well he was unlicensed and had been drinking.” [emphasis added]

28 I agree with the applicant’s submission that to make a finding that the applicant had a blood alcohol concentration of 2 grams of alcohol per one hundred millilitres of blood, that is to say in excess of the statutory “proscribed concentration of alcohol” of 0.15 grams per 100 millilitres of blood, did amount to assessing the culpability of the applicant as if he were guilty of the aggravated form of the offence, contrary to the principle expressed in R v De Simoni (supra) at 389. Gibbs CJ expressed that principle as follows:

“At first sight it may seem unlikely that the framers of the Code intended that an offender should be sentenced on the fictitious basis that no circumstance of aggravation existed when it is found by the trial judge that such a circumstance did exist, particularly when such a finding is based upon an unchallenged statement of facts made by the prosecutor after the offender has pleaded guilty. However, the general principle that the sentence imposed on an offender should take account of all the circumstances of the offence is subject to a more fundamental and important principle, that no one should be punished for an offence of which he has not been convicted. Section 582 reflects this principle. The combined effect of the two principles, so far as it is relevant for present purposes, is that a judge, in imposing sentence, is entitled to consider all the conduct of the accused, including that which would aggravate the offence, but cannot take into account circumstances of aggravation which would have warranted a conviction for a more serious offence”

29 It follows that the sentencing judge here fell into error, a point to which the Crown comes near to conceding. However, the Crown did attempt to justify the approach taken by the sentencing judge by contending that in order for the applicant’s contention to be correct, an offence under s52A(1)(a) alleging driving under the influence of alcohol must necessarily be confined to a situation where a person is under the influence of intoxicating liquor, but with a level of alcohol less than the prescribed concentration. Where indeed that prescribed concentration (the 0.15 level) is reached or exceeded, there is a conclusive presumption of being “under the influence of intoxicating liquor”; see s52A(9) and s52AA(1). Under the combination of those provisions, the accused is then conclusively presumed to be under the influence of liquor, provided the prosecution proves that the prescribed concentration of alcohol was present in the accused’s blood at the time of impact occasioning death or grievous bodily harm. This then satisfies the definition of “circumstances of aggravation” in s52A(7), so as to bring about the s52A(2) offence of “aggravated dangerous driving occasioning death” or the s52A(3) offence of “aggravated dangerous driving occasioning grievous bodily harm”.

30 It is then submitted by the Crown that to exclude 0.15 plus concentrations from the scope of s52A(1) would provide very little scope for the section to operate as experts generally require a level approaching 0.1 before committing to an opinion that the driver was under the influence. Thus it is contended by the Crown that the sentencing judge was entitled to take into account that the applicant was under the influence to the extent the driving ability was very significantly impaired but should not have taken into account that the specific level (0.2) was attained.

31 The difficulty with this reasoning is that it is simply not what the sentencing judge did. Thus she did not expressly limit the relevance of the level of concentration to substantiating that driving ability was very significantly impaired. Rather the sentencing judge explicitly used the language of “the aggravating factors” thus wrongly conflating the more serious offence of “aggravated dangerous driving occasioning death” (s52A(2)) to the still serious but lesser offence of “dangerous driving occasioning death” (s52A(1)).

32 Moreover, one can understand why the prosecution may not have chosen to proceed under s52A(2) by way of a charge of “aggravation dangerous driving occasioning death”. There was a time lapse between the impact at 10.30 pm and the taking of the blood test at 1.15 am, thus denying the prosecution the presumption as to intoxication conferred by s52AA(1). This is because s52AA(3) requires for such presumption that the blood sample that was analysed “was taken within two hours after the impact”. That said, the Crown could have chosen to prove that which s52A(2) required without resort to the presumption, but clearly chose not to do so. In those circumstances, there is indeed a breach of the principle in De Simoni referred to earlier. That in turn may have led the sentencing judge into error in setting the sentence at the level she did with consequent impact upon the non-parole period. However, I shall return to whether the sentence may be justified in any event.

33 The second matter which the applicant relied upon is that the sentencing judge made a finding that the death of the victim was an aggravating feature of the offence, when the death of the victim was in fact an element of the offence. Again, I agree with the submission of the applicant that the finding that the death of the victim amounted to an aggravating circumstance was an error. Its consequences are not obviated by attempting to explain it, as the Crown does, as flowing from an attempt by the sentencing judge to accommodate the guideline judgment (R v Whyte (2002) A Crim R 53) with the elements of the offence and s21A of the Crimes (Sentencing Procedure) Act (1999).

34 That leads to the question of whether the sentence was, as the applicant contends, manifestly excessive. The applicant contends that the starting point adopted by the trial judge of six years eight months was too high. This was the starting point she adopted, prior to giving a discount of two-thirds of the available maximum sentence in circumstances where:

(a) the applicant was very significantly impaired by alcohol;

(b) he was unlicensed;

(c) he had embarked upon a 50 kilometre journey;

(d) five passengers in his vehicle were put at risk;

(e) the offence was committed without regard to public safety;

(f) actual danger was occasioned to another driver;

(g) a conscious decision was made to drive unlicensed and intoxicated;

(h) the driving was inept, dramatic and aggressive; and

(i) the applicant had a relevantly “aggravating history” of convictions.

35 I have taken this catalogue of circumstances from the Crown’s submissions. They clearly and correctly point to factors which are relevant to a heightened level of sentence.

36 Thus to return to the salient facts, the applicant indubitably drove dangerously when, with high beam on, he commenced to tailgate the Magna for 20 – 30 metres. He then overtook the Magna doing so by veering suddenly to the left, thus colliding with the front offside and causing both vehicles to go out of control in the direction of the left shoulder of the road, rolling sideways. Moreover, it is indubitable that the applicant did not have a licence.

37 As against these factors there were subjective factors to which I have earlier made reference. They are of some considerable weight and certainly such as would constitute special circumstances. Thus the early years of the applicant’s life saw him raised in squalor on the Armidale Mission in appalling conditions before substantial houses were built. Both his parents were addicted to alcohol and grossly neglected him.

38 It is relevant that he left school in Year 9 and did so as an illiterate, a fact which has contributed to his never holding a driving licence. While that does not excuse driving without a licence, it does put it in a less unfavourable context. Moreover, questioning from his counsel revealed that he had been able to drive any mechanised vehicle such as bobcats, excavators, bulldozers and other farming equipment.

39 The sentencing judge accepted the evidence given by the applicant that he was truly remorseful and contrite. She found that he was still grieving the loss of a very close friend, a man who had been his friend for over 25 years (Remarks on Sentencing, 4.9).

40 The finding of special circumstances was in fact made by the sentencing judge. It was amply justified not only by the factors to which I have earlier made reference but by the applicant’s prospects of rehabilitation. His affidavit of 17 November 2004 refers to the work he has done as a cleaner whilst in gaol and that he has done various courses including Drug and Alcohol, Anger Management, Enough is Enough, Literacy and Occupational Health and Safety Certificate and annexes the relevant certificates.

41 When one turns to the relevant guideline judgments and most recently R v Whyte (supra), certainly aggravating factors were present. I refer to the extent and nature of the injuries inflicted, the number of people (five) put at risk apart from the other driver, the fact that the level of alcohol would certainly point to significant impairment of the applicant’s driving ability, the length of journey during which others were exposed to risk, and finally erratic or aggressive driving.

42 However, it is significant that for offences against s52A(1) and for the typical case, the guideline states that “where the offender’s moral culpability is high, a full-time custodial head sentence of less than three years (in the case of death) … would not generally be appropriate.”; compare this to the five years to which he was sentenced. Moreover, the guideline focuses attention not only on the objective circumstances of the offence but the subjective circumstances as also requiring consideration.

43 The statistics provided by the Judicial Commission of New South Wales, with the reservations applicable to such statistics, include the comparable case of one count with a plea of guilty, no variable for form 1 matters or prior convictions for the same offence or carrying out the offence whilst on conditional liberty. The statistics show that 26% of the sentences are at 42 months with only some 23% at five years.

44 Counsel for the applicant, Ms Cox, attached some helpful case extracts showing four comparable cases under s52A(1)(b). These were all cases of dangerous driving occasioning death. They are then compared to six cases of more severe sentences imposed for aggravated dangerous driving causing death under s52A(2). That comparison shows that the pattern of sentencing sharply discriminates between the two categories of offence with s52A(1)(c) cases coming within a significantly lower range. These are summarised in an attachment to this judgment.

OVERALL CONCLUSION

45 In circumstances where the sentencing judge drew erroneously on factors appropriate to the aggravated version of the sentence, and where there are such strong subjective factors, I would conclude that the head sentence of five years was excessive, notwithstanding the seriousness of the offence. I consider it should be reduced to four years three months whilst the non-parole period of two years six months should be reduced to two years.

46 I do so conscious of the seriousness of the offence and the factors requiring a very substantial sentence. I consider that, in the circumstances, the reduced sentence and non-parole period still leave such a substantial sentence as is appropriate to the circumstances.

47 I would propose that the Court order that leave to appeal be granted, the appeal allowed, and the orders made by English DCJ be quashed. In lieu thereof I propose that the applicant be sentenced to a term of imprisonment comprising a non-parole period of two years with that period to commence on 14 August 2003 and to expire on 13 August 2005, the date upon which the applicant is eligible to be released to parole. I would propose that there should be a balance of the term of the imprisonment of two years and three months which is to commence on 14 August 2005 and expiring on 13 November 2007. Moreover, the applicant should continue to be disqualified from driving for five years, that is to say commencing from 14 August 2003.

48 BELL J: I agree with Santow JA.

49 HOWIE J: I agree with Santow JA.

IN THE COURT OF CRIMINAL APPEAL

IAN JOHN VALE

AGGRAVATED DANGEROUS DRIVING CAUSING DEATH s52A(2)

Case	Offence	Plea	Sentence	Appeal	Record	Facts
Ammar ELRIFAI (26) NSWCCA [496] 9.12.2002	s.52A(2)	GP	4y NPP 2y	AD	Aggravating factor: escape police. Police tried to pull applicant over after suspecting he may be under influence of alcohol - Applicant continued to drive at high speed (111kmh) - Drove through red light - Vehicle airborne before colliding into tree - Passenger (best friend) killed. Ongoing injuries - extreme remorse - isolated social background (Lebanese) Reference to R v Whyte [2002] NSWCCA 343 impact on R v Jurisic
Joshua VUKIC (28) NSWCCA [13] 27.2.2003	s.52A(2)	G	8y NPP 5y	AA 7y NPP 4y	Midrange PCA (x2): drug offence, violent offence. Poor traffic record. Not previously imprisoned.	The appellant heavily intoxicated (blood alcohol 0.172) – was driving well above the speed limit, he crossed the double centre lines onto the wrong side of the road and collided heavily head on with the victim's car. Aged 28 years at offence. Early plea of guilty. History of drug and alcohol abuse. Suffering permanent physical injuries - suffering major depression and PTSD.
ZELUKIN NSWCCA [262] 17.9.2003	s.52A(2) [alcohol]	VG	5y NPP 3y	AD	Unlicensed driver, traffic offences (x5) Mid Range PCA .refuse supply breath sample, drive manner dangerous, traffic record described as "deplorable” not previously imprisoned.	Driving utility – Crossed to wrong side of road across dirt median strip narrowly missing oncoming vehicle. Continued travelling in wrong lane – Collided with on-coming traffic Under influence of alcohol and cannabis After driving about 3 kilometres at speeds estimated by observers at between 90 and 160kph the applicant reached the crest of a gradient at a speed not less than 135 kph. His vehicle hit the rear of a vehicle driven by the victim which collided with an oncoming vehicle causing the victim's death. The applicant left the scene of the collision (Form 1). Breath test of the appellant at the scene of the accident revealed a reading of .085. Blood sample returned blood alcohol .156 and a positive result for cannabis.
Mohamad HOWCHER NSWCCA [179] 21.6.2004	S.52A(2) [speed]	PG	3y 6m NPP 2y	AD	Drive manner dangerous, 2x Drive whilst disqualified, numerous unreg and uninsured, conspiracy to rob, possession of weapon, unlicensed, in breach of bond.	While demonstrating new car lost control and collided with tree, killing passenger – Car modified – 115-126kph in 60 zone. Absconded to Lebanon for several years – Voluntary return – Rehabilitation.

IN THE COURT OF CRIMINAL APPEAL

IAN JOHN VALE

CASES EXTRACT s52A(1)(c) Crimes Act

DANGEROUS DRIVING OCCASIONING DEATH

Case	Offence	Plea	Sentence	Appeal	Record	Facts
Scott CHRISTOFF (25) NSWCCA [52] 17.3.2003	s.52A(1)(c)	VG	3y 8m NPP 2y 9m	AD	Very poor driving record subject to charge of dangerous at time of accidents. Priors neg. drive (x 3) traffic offences (x 9), dangerous driving. Other drug offences and property offences (x 20) not previously imprisoned.	Convicted after trial. Appellant driving defacto, at 100kph (speed limit 80kph). Failed to take bend, lost control, hit a post, rolled. Appellant also suffered broken shoulder and lacerations to face. - Turned attention from road - Abandonment of responsibility - Killed de facto passenger Remorse - Did not see speed sign - Record an aggravating feature
Nathan HOBDAY (21) NSWCCA [345] 19.11.2003	s.52A(1)(a)	PG	5y NPP 3y	AA 4y NPP 1y 9m	Priors – speeding (x 3), negligent driving, no prior criminal convictions.	Intoxicated – Speeding in heavy rain – Long journey - Lost control of car and crashed into tree – Killed de facto Genuine contrition
Craig BESANT NSWCCA [388] 5.12.2003	(1)s.52A(1)(c) Form 1: refused/failed to provide blood sample. (2) s.52A(1)(c )	PG	(1). head 5 years NPP 4 years (2). Head 5 years NPP 3 years partly consecutive with (1)	AA (1) Reduced head 5 years, NPP 3 YRS (2) reduced head 5 yrs NPP 2 Yrs 6m partly consecutive with (1 )New aggregate: Head 6 yrs NPP 3y.	Extensive history of traffic offences. Previously imprisoned (suspended sentence).	Truck driver suffering fatigue – Fell asleep at wheel, crossed over to wrong side of road – Caused death of two passengers travelling in oncoming vehicle - Erratic driving over 50kms in heavy rain prior to fatal accident Evidence of 8 occasions when applicant drove onto wrong side of highway, or overtook dangerously or pulled out onto the highway without warning. Fatalities only prevented by other drivers involved taking emergency action.– Urine sample showed he was affected by amphetamines. Aggravating circumstances The previous driving demonstrated that the applicant had previously lost and then regained control of his vehicle in circumstances where he must have known he had fallen asleep and was a danger to other road user. Extremely high level of moral culpability: erratic driving for prolonged period, number of persons placed at risk, drug use while driving. Appeal allowed on special circumstances – First time in custody, suffering depression.
Moustafa DANDACHLI NSWCCA [100] 16.4.2004	s.52A(1) (c ) s.52A(3) (c )	PG	4y NPP 3y FT 3y (conc)	AD	Bad driving record with one prior suspension of licence and a second licence suspension was to commence 12 days after the offence occurred.	Drove erratically and aggressively at high speed (150kmh) with four passengers who repeatedly asked A to slow down – Collided with two parked trucks in breakdown lane injuring one passenger and killing another. Aggravating features, number of persons put at risk, excessive speed, period of time over which dangerous driving was extended and failure to heed warnings from his passengers, high degree of moral culpability. Prior good character – University student.
Warwick SULLIVAN (37) NSWCCA [99] 19.5.2004	s.52A(1)(a)	PG	3y 6m NPP 18m	AD	Some history of traffic offences	Had been drinking from 4pm the previous day until 6.15am that morning. Drove in erratic manner, accelerating and breaking harshly. He turned without indicating and drove on the incorrect side of the road and struck and killed a pedestrian. Had at least .120 grams per litre. Offence occurred at 11.30am. Several aggravating features in driving including excessive speed, erratic driving and intoxication. High moral culpability found. Subjective features included qualified electrician, long standing drug abuse, dysfunctional family, depressive disorder. Evidence of rehabilitation
Joshua MELAS (23) NSWCCA 198 17.6.2004	s.52A(1)(c )	PG	3Y NPP 15M	AD	Negligent driving x 2, possess prohibited drug.	Offender drove 90-100kmph through a pedestrian refuge killing a 17 year old cyclist – sunny day, clear conditions.

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Last Modified: 12/21/2004