Smith v R

[2011] NSWCCA 290

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation:

Justin Smith v R [2011] NSWCCA 290

Hearing dates:

23 November 2011

Decision date:

23 November 2011

Before:

McClellan CJ at CL at 25
Blanch J at 1
Hislop J at 26

Decision:

Grant leave to appeal.

Allow the appeal.

Quash the sentence imposed in the District Court and sentence the applicant to a non-parole period of five years and three months imprisonment from 19 September 2009 with a balance of term of 21 months. The total term is therefore one of seven years imprisonment with a five years and three months non-parole period and he will be eligible for release to parole on 18 December 2014. I would confirm the conviction on the charge of driving while unlicensed and I would confirm the order for disqualification from driving for a period of five years from 18 September 2015.

Catchwords:

Criminal law
aggravated dangerous driving occasioning death
guideline judgments
comparative cases

Legislation Cited:

Crimes Act 1900

Cases Cited:

Hughes v R (2008) 185 A Crim R 155
Preston v R [2011] NSWCCA 25
R v Whyte (2002) 55 NSWLR 252
R v Valeila [2010] NSWCCA 113
Muldrock v The Queen [2011] HCA 39
Markarian v The Queen (2006) 228 CLR 357
Bombadieri v The Queen (2010) 203 A Crim R 89
R v Ryan (2003) 141 A Crim R 403
R v Woodward [2001] NSWCCA 90
R v Cousins [2002] NSWCCA 81
Thompson v The Queen [2007] NSWCCA 299
Regina v Rayner [2002] NSWCCA 309

Category:

Principal judgment

Parties:

Justin Blake Davis (Applicant)
Regina (Respondent)

Representation:

C Loukas (Applicant)
J Pickering (Respondent)
B Sandland (Applicant)
S Kavanagh (Respondent)

File Number(s):

2009/209296

 Decision under appeal 

Jurisdiction:

9101

Citation:

R v Justin Smith

Date of Decision:

2010-03-12 00:00:00

Before:

Blackmore DCJ

File Number(s):

2009/209296

Judgment

1. BLANCH J : The applicant seeks leave to appeal against the severity of a sentence imposed at Albury District Court on 12 March 2010. He entered a plea of guilty to an offence of aggravated dangerous driving occasioning death contrary to s52A(2) of the Crimes Act which carries a maximum penalty of 14 years. He was sentenced to eight years imprisonment with a non-parole period of six years from 19 September 2009, which was the date he went into custody.

The Facts

1. The facts presented to the Court were that at about 10.30 p.m. on Friday, 18 September 2009 the applicant was driving his Ford utility vehicle south on David Street, Albury at a speed of between 80 and 100 kilometres per hour in a 60 kilometre per hour zone. The vehicle went through a red traffic light and shortly after was observed on its roof in a culvert nearby. The evidence indicated he was attempting to negotiate a left hand bend where there was an indicative speed sign of 35 kilometres per hour. Based on the physical evidence at the scene, the vehicle was estimated to be travelling at a minimum speed of 92 kilometres per hour prior to it leaving the sealed road. It crossed to the incorrect side of the road and collided with a concrete kerb. The vehicle continued until it collided with a concrete box culvert and rolled over coming to rest on its roof. The applicant was trapped inside the driver's side of the vehicle. Amanda Bowen, the applicant's girlfriend, was trapped in the passenger side of the vehicle with her seat belt still fastened and she died at the scene as a result of massive head injuries. As a result of the collision the vehicle was destroyed.

1. The applicant was freed from the vehicle and said words to the effect of "I just killed my girlfriend. I've killed the only girl I've ever loved." He was observed to be aggressive, unsteady on his feet and smelled strongly of intoxicating liquor. He was arrested and a blood sample was taken which revealed a reading of 0.188 grams of alcohol per 100 millilitres.

1. The applicant was born in 1979 and has a criminal history which began in the Children's Court in 1997. In 1999 he was fined and disqualified for nine months for mid range PCA. In 2000 he was fined and disqualified for low range PCA. In 2002 he was ordered to serve community service for driving with mid range PCA and disqualified. In 2005 he was convicted of maliciously inflicting grievous bodily harm for which he was ultimately sentenced to three months periodic detention. In 2007 he was fined and disqualified for an offence of driving while under the influence of alcohol or other drugs. At the time of the offence his Victorian driver's licence was disqualified or suspended.

The grounds of appeal

1. The first ground of appeal is that "his Honour erred in not applying the principles of sentencing outlined in Hughes v R (2008) 185 A Crim R 155 in relation to the death of an intimate."

1. In that case Grove J said:

"Of course leniency does not derive from the mere fact that the deceased was not a stranger ...but from the consequential quality and depth of the remorse and shock."

1. The sentencing judge said:

"I will allow some consideration for his contrition and remorse based on his sorrow over the death of the victim. But it can only be a relatively minor factor on sentence."

1. It is clear then that his Honour did make some allowance for contrition and remorse based on the death of the victim. He assessed that as minor relative to the other factors he had to bear in mind in imposing the sentence. The authorities do not specify how much consideration should be given to such a factor and I do not believe any error has been demonstrated in his Honour's assessment.

1. The second ground of appeal is "his Honour erred in finding that the applicant's remorse over the death of the victim, his partner, was 'only a relatively minor factor on sentence'." This ground of appeal replicates the first ground of appeal.

1. The third ground of appeal is that his Honour "erred in finding an aggravating factor of the ignoring of warnings." The point raised is that the warnings relied upon by the judge are not of a type previously held to be warnings in these cases. The first warning relied on by the judge was the red light which the applicant drove through well in excess of the 60 kilometres per hour speed limit. This was within a very short distance of the accident itself and must have been an indicator to the applicant he was driving too fast. The second warning relied on by the judge was the advisory speed notice indicating 35 kilometres per hour as the appropriate speed to negotiate the left hand bend. By driving at 92 kilometres per hour around that bend, he was clearly ignoring the advisory warning and I see no error in the judge regarding the advisory speed sign as a warning. I note also that in Preston v R [2011] NSWCCA 25 the Court regarded road signs and markings as warnings.

1. The fourth ground of appeal is "his Honour erred in finding an aggravating factor of competitive driving." That ground is abandoned for good reason because in R v Whyte (2002) 55 NSWLR 252 at p286 Spigelman CJ set out a list of aggravating factors established by the authorities and they included "competitive driving or showing off" and the applicant here said he was showing off.

1. The fifth ground of appeal is "the sentence imposed is manifestly excessive". In R v Whyte (supra) the Court of Criminal Appeal set out in its judgment a guideline for sentencing for an offence of dangerous driving causing death or bodily harm contrary to s52A(1). That guideline said that "... where the offender's moral culpability is high, a full-time custodial sentence of less than three years (in the case of death) ... would not generally be appropriate." The Court went on to say that in the case of an aggravated version of the offence "... an appropriate encouragement to reflect the higher maximum penalty, and what will generally be a higher level of moral culpability, is required." The sentence imposed in this case was significantly higher than that specified in the guideline judgment. The typical case referred to in that case to warrant such a sentence was said to be where there was:

i. Extent and nature of injuries inflicted.

ii. Number of people put at risk.

iii. Degree of speed.

iv. Degree of intoxication or of substance abuse.

v. Erratic or aggressive driving.

vi. Competitive driving or showing-off.

vii. Length of journey during which others were exposed to risk.

viii. Ignoring of warnings.

ix. Escaping police pursuit.

x. Degree of sleep deprivation.

xi. Failing to stop.

1. In this case the applicant was 30 years of age and not of good character and those factors tell significantly against the applicant. On the other hand the victim was not a stranger, the applicant did express remorse and the plea of guilty was at an early stage. Those factors are in his favour. The aggravating factors identified by the Court there which exist in this case are the degree of speed, the degree of intoxication, the aggressive driving, the showing off and the ignoring of the red light and the advisory speed limit. The decision also emphasised that in arriving at a sentence in a particular case, a judge will exercise a broad discretion taking into account all relevant factors. Here the applicant has submitted a table of cases where an offender has been sentenced for aggravated dangerous driving. That list includes 16 cases between 2003 and 2010 and no case involves a sentence as long as this sentence for a single count under s52A(2).

1. The sentencing statistics from the Judicial Commission indicate that for the period from July 2002 to June 2009 for an offence against s52A(2) only seven percent of offenders (represented by four cases) were sentenced to a sentence as high as eight years imprisonment. In only two percent of cases (representing one offender) a non-parole period as high as five years was imposed. These statistics do not specify the number of counts in each case.

1. The applicant has also submitted a table of sentences in manslaughter cases involving the driving of a motor vehicle. That review indicates that in only three of ten cases did an offender receive a sentence involving a non-parole period of six years or greater.

1. The difficulty with statistics and attempts to compare cases is that the matters to be considered in each case are so variable. Justice Rothman in R v Vaeila [2010] NSWCCA 113 said:

"Statistics are a guide to the range that have been imposed; those statistics do not define the range available to a sentencing judge. That range is defined by the maximum sentence and the gravity of the offence."

1. The High Court in Muldrock v The Queen [2011] HCA 39 has reaffirmed the sentencing principle stated by McHugh J in Markarian v The Queen (2006) 228 CLR 357 at 378:

"The judge identifies all the factors that are relevant to the sentence, discusses their significance and then makes a value judgment as to what is the appropriate sentence given all the factors of the case."

1. The High Court went on to deprecate a two-stage approach to sentencing in the context of Division 1A offences (those involving standard non-parole periods). However, as Spigelman CJ pointed out in R v Whyte (supra at pages 277-278) the use of a guideline judgment does not necessarily introduce a two-stage approach to sentencing - it is simply a guide in the ultimate exercise of the application of an instinctive synthesis approach.

1. In the joint judgment of Gleeson CJ, Gummow, Hayne and Callinan JJ in Markarian (supra) at page 371 it was said:

"And judges at first instance are to be allowed as much flexibility in sentencing as is consonant with consistency of approach and as accords with the statutory regime that applies."

1. It is in the context of the principle of consistency of approach that an analysis of past decisions is useful. In the case of Bombadieri v The Queen (2010) 203 A Crim R 89 Justice Buddin referred to a list of ten cases referred to by Justice Grove in R v Ryan (2003) 141 A Crim R 403. In that list of cases the heaviest sentences were in R v Woodward [2001] NSWCCA 90 where a sentence of eight years imprisonment with a non-parole period of five years was imposed. There the offender was convicted after trial and the aggravating feature was a blood alcohol concentration of 0.216. In R v Cousins [2002] NSWCCA 81 after a successful Crown appeal a sentence of eight years with a non-parole period of six years was imposed. That sentence, however, was in respect of the death of two victims, one killed and one seriously injured. He was a disqualified driver and had a criminal history described as "appalling".

1. In the case of Bombadieri v The Queen (supra) Justice Buddin also looked at three cases where two deaths had been occasioned in each. In the case of Thompson v The Queen [2007] NSWCCA 299 for the first offence a sentence of eight years with a five year non-parole period was imposed and for the second offence there was a cumulative sentence resulting in a total sentence of ten and a half years with a non-parole period of seven and a half years. Of the other cases referred to the head sentences were seven years, seven years and ten months and five years and four months. In the case of Bombadieri (supra) itself after a review of the cases this Court reduced a sentence of ten years with a non-parole period of six and a half years to a sentence of nine years with a non-parole period of five years and nine months. In that case the offender was 20 years of age. His driver's licence had been cancelled and he had a driving record including an offence of driving at a dangerous speed. The offender drove at speeds of 150 to 160 kilometres per hour. He was pursued by police and he drove in a reckless fashion for 190 kilometres causing the death of the victim who swerved to avoid his erratic driving.

1. In the case of Regina v Rayner [2002] NSWCCA 309 in a judgment delivered by me I also set out a list of five cases where the longest sentence was one of six years.

1. Having reviewed all of the cases it is apparent this sentence is the highest sentence imposed in respect of one count under s52A(2). In order to maintain a consistency of approach in sentencing for these offences, I believe the sentence should be reduced. On the other hand this is a case involving a serious abdication of responsibility and, taking into account the further subjective material tendered to this Court, a significant sentence is required.

1. Accordingly, I propose the following orders:

(1)   Grant leave to appeal.

(2)   Allow the appeal.

(3)   Quash the sentence imposed in the District Court and sentence the applicant to a non-parole period of five years and three months imprisonment from 19 September 2009 with a balance of term of 21 months. The total term is therefore one of seven years imprisonment with a five years and three months non-parole period and he will be eligible for release to parole on 18 December 2014. I would confirm the conviction on the charge of driving while unlicensed and I would confirm the order for disqualification from driving for a period of five years from 18 September 2015.

1. McCLELLAN CJ at CL: I agree with Justice Blanch. This is yet another of offences which this Court sees from time to time when persons who are heavily intoxicated drive a motor vehicle. As Justice Blanch has made plain, the decisions of this Court indicate that those who conduct themselves in that manner can expect a severe penalty. It is only the fact that the range of penalties that have previously been imposed indicate that this court should intervene in this particular case that I share in the decision which Justice Blanch has indicated he would make.

1. HISLOP J: I also agree with Justice Blanch.

1. McCLELLAN CJ at CL: the orders of the Court are accordingly those proposed by Justice Blanch.

Decision last updated: 22 December 2011